Apendix — Mass v. City of Carlsbad

Supreme Court brief1995

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Court, U.S.

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941018 DEC 219%

No. OFFICE OF THE CLERK ;

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

THOMAS A. MASS, pro se and JANET A. MASS,

Petitioners,

CITY OF CARLSBAD, a Municipal Corporation;

FIELDSTONE/LA COSTA ASSOCIATES LIMITED

PARTNERSHIP, a California Limited Partnership,

Respondents.

On Petition for a Writ of Certiorari to the Court of

Appeal of California, Fourth Appellate District,

Division One

APPENDIX VOLUME I

(Petitioners' Selected Complaints)

THOMAS A. MASS

Counsel of Record

2851 Torry Court

Carlsbad, CA 92009

Tel: (619) 931-0100

Fax: (619) 438-7850

CHRISTOPHER LIEF MASS

Of Counsel

Pacific Bay Towers

2035 Fourth Street, Suite 107-C

Santa Monica, CA 90405

Tel: (310) 399-3050

No.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

THOMAS A. MASS, pro se and JANET A. MASS,

Petitioners,

CITY OF CARLSBAD, a Municipal Corporation;

FIELDSTONE/LA COSTA ASSOCIATES LIMITED

PARTNERSHIP, a California Limited Partnership,

Respondents.

On Petition for a Writ of Certiorari to the Court of

Appeal of California, Fourth Appellate District,

Division One

APPENDIX VOLUME I

(Petitioners' Selected Complaints)

THOMAS A. MASS

Counsel of Record

2851 Torry Court

Carlsbad, CA 92009

Tel: (619) 931-0100

Fax: (619) 438-7850

CHRISTOPHER LIEF MASS

Of Counsel

Pacific Bay Towers

2035 Fourth Street, Suite 107-C

Santa Monica, CA 90405

Tel: (310) 399-3050

TABLE OF CONTENTS

SECOND AMENDED COMPLAINT FOR

INVERSE CONDEMNATION, NUISANCE

AND/OR NEGLIGENCE, REQUESTING

DECLARATORY RELIEF, AND IN THE

ALTERNATIVE A WRIT OF MANDATE........... l

THIRD AMENDED COMPLAINT FOR

PLAINTIFF'S THIRD CAUSE OF ACTION

FOR A WRIT OF MANDATE IN THE

ee re Ste ae Pee Pee 36

AMENDED SUPPLEMENTAL COMPLAINT

FOR PLAINTIFFS' CAUSE OF ACTIONS

BASED ON THE DEPRIVATIN OF THEIR

RIGHTS SECURED BY THE UNITED STATES

CONSTITUTION, REQUESTING MONEY

DAMAGES, DECLARATORY RELIEF AND

EQUITABLE RELIEF INCLUDING AN

INJUNCTION. [42 U.S.C. §§1983, 1985,

SO; SE das 05 caked hes he eee «eee 65

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR

THE COUNTY OF SAN DIEGO

THOMAS A. MASS and JANET A. MASS, Plaintiffs

CITY OF CARLSBAD, a Municipal Corporation;

FIELDSTONE/LA COSTA ASSOCIATES LIMITED

PARTNERSHIPP, a Califormia Limited Partnership, Defendants

Case No. N53303

SECOND AMENDED COMPLAINT FOR INVERSE

CONDEMNATION, NUISANCE AND/OR NEGLIGENCE,

REQUESTING DECLARATORY RELIEF, AND IN THE

ALTERNATIVE, A WRIT OF MANDATE

PLAINTIFFS RESPECTFULLY REPRESENT:

FIRST CAUSE OF ACTION

(Inverse Condemnation)

(Plaintiffs vs. “The City’ Defendants)

1. Plaintiffs are the owners and reside in the following

described real property in the city of Carlsbad, San Diego

County, California:

Lot 26 of Carlsbad Tract No. 81-29 in the City of

Carlsbad, County of San Diego, State of California,

according to Map thereof No. 11423, filed in the

Office of the County Recorder of San Diego,

January 20, 1986, and commonly known as 2851

Torry Court.

2. The above described property is contiguous to said

Torry Court on the north and Corte de la Vista on the south and

is within a gated community known as Alicante Hills and is

bounded on the cast by Bolero Street and on the west by

Alicante Road.

3. The plaintiffs’ home is a free standing single family

residence with a 35' x 50' terrace on the ground floor, and a 10’

x 40' balcony on the second floor which fronts on said Corte de

la Vista.

4. Said terrace and balcony afford a 180° panoramic

view overlooking the La Costa Golf Course and a direct and

unobstructed forever view of the Batiquitos Lagoon and the

Pacific Ocean, as well as the year round prevailing ocean breeze

which is the property's primary use and value.

5. The plaintiffs’ property is contiguous to the “Fairways

Project” of the defendant Fieldstone/La Costa Associates

Limited Partnership (“The Developer”), which is a planned

development of 132 single family detached residences located

south of Corte de la Vista, east of Alicante Road and north of

the La Costa Golf Course.

6. The defendant City of Carlsbad is a public entity

chartered and existing under the laws of the State of California

(“The City’).

7. That pursuant to the authority of the Subdivision Map

Act “S.M.A.” (Government Code §§ 66410-66499.37) “The

City” adopted a “Subdivision Ordinance” (9417 § 2 (part)

1975) contained in Title 20 of the Municipal Code and at all

times herein mentioned both the statute and ordinance were in

full force and effect.

8. That pursuant to said statute and ordinance “The

Developer” applied to “The City” for the approval of a

planned unit development, hillside development, and a

subdivision map (CT90-23/PUD 90-23/HDP 90-29), and the

issuance of the related permits (map).

9. That on or about the 8th day of January 1991, “The

City” approved the tentative map and on or about the 3rd day

of September 1991, “The City” approved the final map for the

construction of 132 single family detached homes on 41.09

acres known as “The Fairways Project.”

10. “The Developer's” original plan and map and its

application to “The City” requested that the location of the

access to the project should be on Alicante Road. “The City”

denied the request and insisted that the access be moved to Corte

de la Vista as a condition for the issuance of the necessary

approval. An employee of the Planning Department of “The

City” testified before the Planning Commission of “The City”

at their meeting of October 3, 1990, in part as follows: ‘

“The project is proposed as a gated community.

The gate design is single access off Corte de la Vista

and it provides a turnaround area at the entrance.

The location of the single access was dictated by

staff. The original proposal came in with an access

off Alicante Road; however, for traffic safety

purposes, staff requested that the entrance be moved

to Corte de la Vista.” (See page 2 of plaintiffs’

group Exhibit E.)

11. Alicante Road is a heavily traveled secondary road,

Corte de la Vista is a low use residential street, approximately

one-quarter of a mile long, ending with a dead end cul-de-sac

on the east end and in a “blind” exit onto Alicante Road on the

west end.

12. “The City's” Planning Department, Planning

Commission and the City Council all relied and supported their

decision to relocate the gate on considerations of the public

safety, for the public at large, and not for any private purpose or

use, including “The Developer” and the successor occupants of

the project.

13. “The City's” requirement that “The Developer”

relocate the access to the project for ingress and egress (“the

gate”) was for the express purpose of regulating traffic which is

a function of government for the benefit of the public, and as

such serves a public purpose and use. Traffic regulations was

the public “improvemeni.” The act of relocating “the gate”

directly and wrongfully diverted the heavy traffic from Alicante

Road and re-routed it to Corte de la Vista thereby increasing,

unreasonably and excessively, the volume of traffic, and

destroying the residential environment of the plaintiffs’ home.

“The gate” will be constructed in its new location by “The

Developer” as authorized and directed by “The City” and

subject to its approval, and said gate will be accepted by “The

City” by “The City's” integrating “the gate” into its public

roadways.

14. That both Alicante Road and Corte de la Vista are

public improvements and part of the public roads owned and

maintained by “The City.” The relocation of “the gate” by

“The City's” affirmative action was not only by its substantial

participation, but the sole and direct cause of creating and

causing the condition that will result in the damaging and/or

taking plaintiffs’ property by the trespass, nuisance and air

pollution more fully described elsewhere in plaintiffs’

complaint.

15. As a direct result thereof, the flow of traffic will all enter

and exit on Corte de la Vista which is a public street and not a

private driveway, and integrated into the public streets on the

admitted grounds for the public safety of the community as a

whole and will dramatically and adversely increase the volume

of traffic and change the residential environment.

16. The plaintiffs’ homes are all oriented to take full

advantage of the gallery location above Corte de la Vista so as to

enjoy the 180 degree panoramic view and prevailing winds of

the ocean. As shown in Exhibit B20 the plaintiffs’ property is

elevated above the street and the panoramic view is not affected.

The prevailing wind from the ocean is in the direction to take

the air pollution alleged elsewhere herein and waft it directly on

plaintiffs’ terrace and balcony to their damage. The “Fairways

Project” as originally planned and submitted to “The City” for

approval was not and has not been objected to by plaintiffs; as a

matter of fact it was relied on by them in making the purchase

of their home and improving the terrace with a Bar-B-Q and spa

as seen in plaintiffs’ group Exhibit B1-20. Neither the view nor

the ocean breeze would be adversely affected by the original

plan. It was “The City's” action in relocating the gate and

changing the traffic pattern of a public street for the public use,

for the public safety, which is the cause of the air pollution

herein alleged.

SOP Te ee a

17. That “The City's” taking is official governmental

action in requiring that “The Developer” locate the access to

the “Fairways Project” on Corte de la Vista, determined (albeit,

mistakenly) that the safety concerns of the whole community

would best be served by that location.

18. That as a direct and necessary result of the aforesaid

official governmental action, the noise, dirt, odor, air pollution,

flashing headlights and vibrations cause, and will continue to

cause, a substantial interference with the use and enjoyment by

plaintiffs of plaintiffs’ homes, the loss of reasonable investment-

backed expectations, and a diminution in its primary use and

value.

19. That the governmental authorities acting on behalf of

“The City” affirmatively required “The Developer” to locate

the access in proximity to the plaintiffs’ property, and “The

Developer” carried out the governmental mandate exactly as

required, so that said location of the access was in fact the

official affirmative action of “The City”. That based upon the

above and foregoing, “The City” has “taken” and/or damaged

the plaintiffs’ property for a public use and has not given the

plaintiffs “just compensation.”

20. “The City” has an existing ordinance which at all times

herein mentioned was in full force and effect, to wit: “Interim

Traffic impact fee for Southeastern Area (La Costa).”

21. Subsection 18.42.020(e) of said Traffic ordinance

defined “Trip” as follows: “Trip” means arrival at or a

departure from a project by any motor vehicle averaged over a

one-day period (12:01 a.m. to 11:59 p.m.) as determined

according to Table 18.42.020(e).

22. That the Table (18.42.020(e)) provides that a single-

family detached residence can be expected to generate ten

“trips” on each weekday. That the 132 homes to be

constructed in the “Fairways Project” will result in generating

1,320 “trips” each week-day.

23. The Court will take judicial notice that there are 1,440

minutes in each one day period; and that one motor vehicle

every minute, entering and exiting a gate, together with braking

and accelerating within a one block distance will cause air and

noise pollution to the plaintiffs and their property.

24. As a direct result and as a proximate consequence of

the dust, dirt, debris, noxious odors, flashing lights and noise, the

plaintiffs have been and will continue to be peculiarly and

substantially damaged. That “The City,” by locating the access

to the “Fairways Project” across the street from the plaintiffs’

homes, has caused an invasion and appropriation of their

valuable property rights and their investment-backed

expectations, which has rendered their property untenantable to

the plaintiffs, being the essence of why they purchased the

property for their residence and paid a premium for its location

and view and constitutes a loss of its primary use and value and

thus is a compensable taking under Article I, Section 19 of the

California Constitution, as well as the Fifth Amendment of the

federal Constitution.

25. That based upon the factual allegations herein, the

plaintiffs state the facts to be and allege as follows:

(a) That the nuisance-trespass type activity that results

from the traffic generated has caused a diminution in the value

of the plaintiffs’ property and has substantially interfered with

their use and enjoyment of their homes by imposing on them a

direct, peculiar and substantial burden, and as such, they are

entitled to just compensation as a result of the taking and/or

damaging of their property;

(b) That the air pollution caused by the traffic is

effective physical appropriation, occupation or interference of a

permanent nature by contaminating the air over their property,

with toxic and non-toxic gaseous solids and/or liquids, and

constitutes a compensable taking or damage and that this is true

whether the relocation of the gate achieved an important public

benefit or had only a minimal economic impact on the

plaintiffs;

gate across from plaintiffs’ property was not a possessory type

of activity as hereinabove alleged and only constitutes a non-

possessory type interference, the extent to which “The City's”

decision has damaged or destroyed the plaintiffs’ distinct

——

investment-backed expectations, as hereinabove alleged, are

compensable, and the plaintiffs are entitled to just

compensation.

(d) That the view and the prevailing ocean breeze

were not the primary reasons why the plaintiffs purchased their

home and improved the terrace at an additional cost of

$50,000.00. They were the only reasons! The view and the

breeze is still there but because of the nuisance, trespass and air

pollution described herein, the plaintiffs have been denied use

of these features. They have been denied the use of their terrace

because of the dirt, noise and odors; and that although the view

can be enjoyed from indoors, the house cannot be ventilated

and cooled through open windows and doors by the ocean

breeze because of the same dirt, noise and odors more fully

described elsewhere herein, which make opening the doors and

windows prohibitive;

(e) The plaintiffs purchased their home to enjoy the

out-of-doors living and comfortable indoor living without air-

conditioning, and both features have been substantially and

significantly damaged and/or destroyed by the defendants and

each of them as herein alleged;

(f) The plaintiffs have incorporated a group of

photographs into their group Exhibit B1-20 which demonstrates

in a tangible and concrete manner that what has been alleged as

the reason for their purchase and subsequent improvements was

not an after-thought but was a distinct investment-backed

expectation.

26. That notwithstanding that no claim is required to be

filed against “The City” by the plaintiffs in order to maintain

their action (Government Code § 905.1), the plaintiffs did on

the 26th of September, 1991, deliver to “The City” a copy of a

first draft of a complaint, which included a cause of action for

inverse condemnation.

27. As a result of the above-described damages to the

names plaintiffs’ property, they have been damaged in excess of

one hundred thousand ($100,000.00) dollars, and by this

reference plaintiffs here incorporate the specific allegations of

damages in this complaint set forth.

28. As a direct and proximate cause of “The City's”

relocating the gate from Alicante Road, the pattern and volume

of traffic on Corte de la Vista has resulted in the creation of the

nuisance and air pollution herein alleged.

29. Plaintiffs have received no compensation for their

damages, nor has “The City” instituted eminent domain

proceedings.

30. “The City's” decision to relocate the gate without

paying to the plaintiffs the just compensation for the damage

and/or taking of their property, is in violation of plaintiffs’ due

process rights, equal protection rights, proportionality rights,

liberty and privacy rights, and the takings and/or damaging

clause of both the state and federal Constitutions, both as

applied and on its face.

31. The plaintiffs’ property rights to exclude has been

violated by the governmental decision which resulted in an

invasion and interference with their right of a personal sanctuary

in their homes.

32. “The City,” by its decision and failure to justly

compensate the plaintiffs, has deprived the plaintiffs of their

constitutional right to a jury to determine their damages.

33. Plaintiffs have incurred and will incur attorneys’,

appraisal, environmental experts and engineering fees because

of this proceeding, in amounts that cannot yet be ascertained,

which are recoverable in their action under the provisions of

Section 1036 of the Code of Civil Procedure.

34. An actual controversy has arisen and now exists

between the plaintiffs and the defendants as to the legal

consequences resulting from the facts that have and will occur as

hereinabove alleged.

35. Plaintiffs desire a judicial determination of their rights

and duties, and a declaration that they may pursue their

remedies for damages.

36. A judicial declaration is necessary and appropriate in

order that the parties may take appropriate steps to mitigate their

damages; and will also serve considerations of judicial economy.

WHEREFORE, plaintiffs pray judgment against “The City”

as follows:

A. A declaration of the rights and duties of the parties;

B. To permit the cause of action to pend the completion of

construction and the sale of all the homes in the “Fairways

Project;”

C. Thereafter, set the matter down for a jury trial to

determine the amount of just compensation for the plaintiffs

and each of them, together with interest at the legal rate from the

date of the damages;

D. For reasonable attorneys’, appraisal, environmental

experts, and engineering fees, according to proof;

E. For costs of suit herein incurred; and

F. For such other and further relief as the Court may deem

proper.

SECOND CAUSE OF ACTION

(Nuisance)

(Plaintiffs vs. “The Developer” Defendants)

37. Plaintiffs incorporate paragraphs 1 through 5 both

inclusive of their First Cause of Action as though fully set out

here.

38. “The Developer” is the largest single land owner of

residential real estate in the La Costa area of the City of

Carlsbad. It is, and has been for a number of years, actively

engaged in planning and constructing new residential

communities and holds itself out and does business under the

assumed name of “Fieldstone of La Costa.”

39. “The Developer” has a large staff and retains outside

consultants and contractors to plan and develop its new

subdivisions. “The Developer” has been working with “The

City” for five years or more on its “Fairways Project.”

40. The plaintiffs are informed and believe and thereon

allege that in “The Developer's “ original plan for the

“Fairways Project” submitted to both the planning department

and the planning commission of “The City,” they located the

access td: said project on Alicante Road.

41. That the plaintiffs, prior to purchasing their home,

investigated the proposed development below and adjacent to

their property and were satisfied as to the proposed density,

height and style of the homes to be built, and also relied on the

location of the gate which was to be on Alicante Road. At that

time, plaintiffs had no reason to believe that the gate to the

development would be relocated across the street from them and

would result in the nuisance, negligence, trespass and air

pollution caused by the increased volume of traffic to their

home. Plaintiffs were the first purchasers and selected their

location over the other thirty-seven that were available.

42. The plaintiffs were justifiable in their reliance on these

facts, as well as the residential character of the road that they

would be contiguous to, never expecting “The City” to divert

the heavy traffic of Alicante Road to Corte de la Vista and to

relocate the gate to the project across the street from their home,

or “The Developer” to concur.

43. The first notice that the plaintiffs had that the access

may be located on Corte de la Vista (across the street from

plaintiffs’ homes) was on or about the 10th day of May, 1990, at

“The Developer's” local office in La Costa.

44. The plaintiffs promptly made their objections to the

location of access to the “Fairways Project” to “The

Leveloper;” to “The City's” Planning Department and

Planning Commission; as well as to the City Council.

45. “The Developer” never made any public objection to

“The City's” decision to relocate the access of the “Fairways

Project” (sometimes hereinafter referred to as the property in

question, P.I.Q.). “The Developer” also failed to exhaust its

administrative remedies or seek judicial review of “The City's”

decision. “The Developer” knew or should have known that

the relocating of the only gate to the “Fairways Project” to

Corte de la Vista would result in damages to the property of

others, and result in a nuisance, negligence, trespass and air

pollution, but breached its duty to plaintiffs by failing to take

any action to prevent or mitigate that result.

46. Commencing in August of 1991, “The Developer,”

with “The City's” full authorization, direction and approval,

commenced construction of “The Fairways Project” in a

manner which constitutes a nuisance and/or negligence. Noise,

noxious odors and dirt in the form of dust are blown onto

plaintiffs’ property by prevailing winds by “The Developer's”

failure and refusal to take all necessary and reasonable

precautions to prevent, reduce, or mitigate the emissions as

aforesaid.

47. The aforementioned occupation, use, and maintenance

of the P.1L.Q. constitutes a nuisance within the meaning of

Section 3479 of the Civil Code and is the proximate cause of its

damages. Such occupation substantially and unreasonably

interferes with the comfortable use and enjoyment of plaintiffs’

property, and may well be harmful to plaintiffs’ health.

48. On or about August 7, 1991, the plaintiff gave written

notice to the “The Developer” of the injury the plaintiffs have

experienced and expect to experience in the future (see

plaintiffs’ Exhibit “A”). Plaintiff requested “The Developer”

to abate such unreasonable activity, but they have refused and

continue to refuse to abate the nuisance and negligence as

aforesaid.

49. As a proximate result of the nuisance created by “The

Developer” and its acts and omissions as aforesaid, plaintiffs

have been, and will be damaged by: (a) being denied the full use

and enjoyment of their property; (b) the cost and or personal

labor in cleaning the walks, furniture, windows and other

appurtenances on a daily basis; (c) the value of the property has

and will decline unless this nuisance is abated; (d) and may be

hazardous to the plaintiffs’ health.

50. In maintaining the nuisance and its acts of commission

and omission as aforesaid, “The Developer” is acting with full

knowledge of the damages being caused plaintiffs. Defendant's

conduct is willful, oppressive and malicious. Accordingly,

plaintiffs are entitled to punitive damages against defendants.

51. The above described dust, dirt, odors and noise have

persisted and continue to persist. Plaintiffs have been denied the

valuable use and enjoyment of their terrace and have been

forced to keep their doors and windows closed. The focal point

of plaintiffs’ property is the terrace, for the view and the

prevailing winds from the ocean, all aspects of which have been

destroyed or substantially reduced; they are the primary reason

for the value of the property and the exclusive reason why

plaintiff purchased the property and spent in excess of

$50,000.00 to enhance the outdoor terrace (see Group Exhibit

“B™>.

52. The activities above described interfere with plaintiffs’

possession of their property and constitutes a continuing and

temporary nuisance to plaintiffs. Unless “The Developer”

abates such conduct, the plaintiffs will be denied the full use and

enjoyment of their property during the site preparation, which is

scheduled for a year, and construction, which could take several

years.

53. The vibrations, fumes and noise are offensive to the

senses and deny plaintiffs the free use and enjoyment of their

property. Such interference with plaintiffs’ comfortable

enjoyment of life and property has resulted in the substantial

reduction in the market value of their property.

54. The nuisance and negligence described above is

“continuing” and will presumably come to an end. However,

the nuisance that can be expected to start when construction is

complete and the 132 homes are occupied, will be a

“continuing and permanent” nuisance.

55. “The City” has an existing ordinance which at all times

herein mentioned was in full force and effect, to wit: “Interim

Traffic impact fee for Southeastern Area (La Costa).”

56. Subsection 18.42.020(e) of said Traffic ordinance

defined “Trip” as follows: “Trip” means arrival at or a

departure from a project by any motor vehicle averaged over a

one-day period (12:01 a.m. to 11:59 p.m.) as determined

according to Table 18.42.020(e).

57. That the Table (18.42.020(e)) provides that a single-

family detached residence can be expected to generate ten

“trips” on each weekday. That the 132 homes to be

constructed in the “Fairways Project” will result in generating

1,320 “trips” each week-day.

58. The Court will take judicial notice that there are 1,440

minutes in each one day period; and that one motor vehicle

every minute, entering and exiting a gate, together with braking

and accelerating within a one block distance will cause air and

noise pollution to the plaintiffs and their property.

59. That as a direct and proximate cause of the dust, dirt,

debris, noxious odors, flashing lights at night and street noise,

the plaintiffs have been and will continue to be peculiarly and

substantially damaged.

60. That the location of the access to the “Fairways

Project” across the street from the plaintiffs’ homes has caused a

destruction of the valuable property rights and rendered their

property untenantable. The unique property rights formerly

enjoyed by the plaintiffs was the essence of the reason they

purchased the property and paid a premium for its location and

view.

61. The view is still there but cannot be enjoyed because of

the dirt, noise and air pollution, as aforesaid.

62. The essence of the nuisance and/or negligence

hereinabove described is that it damages, if not destroys, the

plaintiffs’ personal enjoyment of their terrace. It also has the

effect of lessening the value of the property and may affect the

health of the plaintiffs. It also requires that doors and windows

be kept closed at all times, thereby will be forcing the plaintiffs

to install air conditioning which they cannot tolerate.

63. The nuisance herein described is both a private and

public nuisance which affects the entire neighborhood. “The

Developer” has negligently caused or allowed the emission of

fugitive dust from its active operation, use of unpaved roads,

open storage pile, demolition, and disturbed surface area, so that

the presence of such dust remains visible in the atmosphere

above plaintiffs’ property and deposits large amounts of visible

particulate matter on plaintiffs and their property as a direct

result of “The Developer's operations. “The Developer” has

failed and refused to take all reasonable and necessary

precautions to prevent, reduce, or mitigate the emissions as

aforesaid. Upon completion of the project “The Developer” or

its successors-in-title will cause continued air pollution,

increasing the amount of ozone, exhaust contaminants, carbon

monoxide, and fine particles that will be injurious to plaintiffs

and their property as herein more fully alleged, all as a direct

result of their acts and omissions as aforesaid.

64. The “continuing” but temporary nuisance started in

August 1991, and is expected to continue for at least a year.

The permanent and continuing nuisance will take its place when

construction is complete and the new owners occupy their

residences. This permanent nuisance will remain in effect from

that point on or unless abated, which is unlikely.

65. The nuisance is based on fault, and also on the basis of

one person's property and/or activity injuring another's person

and/or property, as well as “The Developer's” acts and

omissions as aforesaid.

66. As a proximate result of the nuisance and/or negligence

the value of plaintiffs’ real property has been diminished by not

less than $100,000.00, and further, they have been denied the

full use and enjoyment of their property, and unless the

nuisance is abated, plaintiffs’ property will be progressively

further diminished in value.

67. The exact damages that have been and will continue to

be inflicted on the plaintiffs cannot at this time be determined,

but will include loss of value, loss of use, clean-up expenses,

repairs, and possible personal injuries and great physical, mental,

and nervous pain and suffering. As a result of such injuries,

plaintiffs have suffered general damages in an amount

according to proof.

68. In maintaining the nuisance and its continuing

negligence, “The Developer” is acting with full knowledge of

the consequences and damage being caused to the plaintiffs, and

their conduct is willful, oppressive, and malicious. Accordingly,

plaintiffs are entitled to punitive damages against “The

Developer” in a sum to be determined by the jury.

69. “The Developer” has failed to minimize the pollution

caused by their site preparation, and further, has failed to

implement a program of clean-up activities so as to allow the

plaintiffs to make full use and enjoyment of their outdoor

terrace entertainment center.

70. The successor in title to “The Developer” will be the

132 homeowners. Unless the new owners abate the nuisance or

are enjoined from continuing the nuisance, the plaintiffs will

suffer permanent and continuing damages. The result of such

nuisance will cause the plaintiffs irreparable injuries such as

usefulness, the economic value of the plaintiffs’ property will be

substantially diminished, and the plaintiffs will be deprived of

the comfortable enjoyment of their property.

71. The location of the access to the “Fairways Project”

has an effect on the possession of the real estate that the

prospective purchasers will occupy as their residences.

72. That because plaintiffs may seek a permanent

injunction against the prospective owners, and further, because

the possession of residences will be affected by the location of

the access to the “Fairways Project,” it is reasonable and

necessary to give them actual or constructive notice of the

pendency of this action, as well as the current and subsequent

encumbrances.

73. An actual controversy has arisen and now exists

between “The Developer” and their successor in title. That

considerations of judicial economy as well as providing the

parties an opportunity to mitigate their damages make a judicial

declaration both necessary and appropriate.

74. The Civil Code §3479 states, “Anything which is

injurious to health, or is indecent or offensive to the senses, or

an obstruction to the free use of property so as to interfere with

the comfortable enjoyment of life or property, . .. is a

nuisance.” Section 731 of the Code of Civil Procedure

provides, “Any action may be brought by any person whose

property is injuriously affected, or whose personal enjoyment is

lessened by a nuisance... .” That by virtue of the acts and

omissions of “The Developer” it has violated these provisions,

as well as §41700 (nuisance) and §41701 (visible emissions) of

the California Health and Safety Code, and §§402 (nuisance)

and 403 of the South Coast Air Quality Management District.

75. That Section 3482 of the Civil Code provides that

“nothing which is done or maintained under the express

authority of a statute can be deemed a nuisance.” “The City's”

decision to relocate the gate does not expressly or impliedly

authorize the nuisance herein described. “The City” did not

sanction a nuisance for itself. “The Developer” does not have

a governmental immunity for its use of its property that causes

damages to others. “The Developer's” remedy was and is

against “The City,” but has no defense against these plaintiffs

based on Section 3482 of the Civil Code. |

76. That based on the facts hereinabove well pleaded, “The

Developer” has caused and is causing a nuisance and

continuing its negligence during the preparation of the site and

the construction of the “Fairways Project;” and will be creating

a continuing and permanent nuisance which will be maintained

by its successor in title by permitting close to 1,500 vehicle trips

a day that will come in and out of the access gate and on to

Corte de la Vista every day across the street from the plaintiffs’

property.

WHEREFORE, plaintiffs pray judgment against “The

Developer” as follows:

A. That as to those parts of this cause of action that have

not ripened (the continuing and permanent nuisance), the Court

declare the respective rights and duties of the parties and their

privity;

B. That upon notice, motion and points and authorities,

the Court conduct a hearing to determine the legality of

granting plaintiffs their right to file a Lis Pendens notice with

the County Recorder in accordance with Code of Civil

Procedure §§409-409.9;

C. A declaration of the rights and duties of the parties;

D. For general, special, and punitive damages in

accordance with proof;

E. For reasonable attorneys’, appraisal and engineering

fees according to proof;

F. For costs of suit herein incurred; and

G. For such other and further relief as the Court may

deem proper.

THIRD CAUSE OF ACTION

IN THE ALTERNATIVE

(Writ of Mandate)

(Plaintiffs vs. “The City’ Defendant)

77. Plaintiffs incorporate paragraphs 1 through 6 both

inclusive of their First Cause of Action as though fully set out

here.

78. Under the authority and direction of the Subdivision

Map Act (Government Code §§66410-66499.37) hereinafter

for convenience referred to as “S.M.A.,” the control of the

design and improvements is vested in “The City” and it is

required to enact a subdivision ordinance to supplement and

implement the “S.M.A.” which it did and is known as the

“Subdivision Ordinance” (9417 §2 (part) 1975 and is

contained in Title 20 of the Municipal Code).

79. Section 20.12.080 of the Subdivision Ordinance

provides in part that the Planning Commission is authorized and

directed to: “(1) Hold a public hearing on all tentative maps.

Any interested person may appear at the hearing and shall be

heard;” likewise, in Section 20.12.090 the City Council is

required to: “(b) The City Council shall hold a public hearing

on the tentative map. Any interested person may appear at such

hearing and shall be heard.”

80. The “S.M.A.” provides in part that the control of the

design and improvements is vested with the city and county

governments with consideration for their relation to the

adjoining areas and they are required to exercise discretion in

determining relevant facts. The time within which to seek

judicial review is extremely short and only a limited right to

examine the reasonableness of their decision is provided for.

81. That pursuant to Section 20.12.092 of the Subdivision

Ordinance, the plaintiffs received a notice for a meeting of the

City Council on December 18, 1990, a copy of which is attached

hereto and incorporated herein as Exhibit “C.”

82. At said meeting employees of the Building,

Engineering and Planning Department reviewed the background

and the plans and specifications of “The Fairways Project.”

The Assistant City Attorney also made comments and

recommendations.

83. Employees and consultants of “The Developer”

(Fieldstone Company) then put on a slick “dog and pony”

demonstration, including, maps, photographs, and a slide

presentation in support of the “Fairways Project.”

84. That plaintiffs appeared at said meeting along with

other interested parties and pursuant to the rules of “The City”

were granted five minutes in which to speak as individuals and

ten minutes for presentations on behalf of a group. A copy of

the Agenda is attached hereto in support of this allegation as

Exhibit “D.”

85. That the plaintiff on his own behalf and also as the

spokesperson for the Alicante Hills Homeowners Association, a

California Corporation, voiced his objections to the Planning

Department, the Planning Commission, as well as the City

Council, to wit: The location of the access to the Project should

be moved from Corte de la Vista back to Alicante Road where

“The Developer” had originally requested it; that by placing

the gate to the “Fairways Project” on Corte de la Vista, the City

of Carlsbad has increased tenfold the probability that an

accident would occur at the “blind spot” which exists when

exiting Corte de la Vista on to Alicante Road; that the costs

associated with compensating individuals for injuries incurred as

a result of approval of the tentative map, with knowledge of such

increased risks, will be unfairly born by the taxpayers of

Carlsbad; and lastly, that plaintiffs’ property value will decrease

substantially due to the significant increase in noise, light, fumes,

dust, dirt, and vibrations which will emanate from the 132 single

family homes in and out of the planned unit development gate,

the entrance being located below plaintiffs’ property on Corte de

la Vista, instead of Alicante Road. A copy of the Planning

Commission's minutes of October 3, 1990 is attached hereto and

incorporated herein by reference as Exhibit “E.”

86. Thereafter, both “The Developer” and “The City”

were given unlimited time, as they were in making their original

presentation, to rebut the objections made by the public,

including your plaintiffs. At no time was plaintiff given an

Opportunity to cross-examine the witnesses who testified in favor

of the plan. Nor was plaintiff allowed time to rebut the evidence

which was marshaled in support of the plan.

87. On or about January 8, 1991, the tentative map was

approved by the City of Carlsbad. However, the tentative map

was subject to a number of conditions. In addition, the tentative

map still had to comply with the final map requirements

contained in Chapter 20.20 of the “City's” Subdivision

Ordinance. Thereafter, without further notice or public

hearings, the final map was approved by the City Council on or

about September 3, 1991. This fact was discovered by plaintiffs

on September 6, 1991, upon making inquiry with the Planning

Department of “The City” as to the time limitation in which to

seek judicial review of the City Council's decision. Plaintiffs

were informed that the specific period of time in which to seek

judicial review was not within the offhand knowledge of this

particular employee, but that an investigation would be made

and an answer provided as soon as possible. To date, plaintiffs

have yet to hear from any employee at the Planning

Commission as to the limited time in which to seek judicial

review of the City Council's decision.

88. That the plaintiffs believe, and so state the facts to be,

that in this case, the approval of the final subdivision map was

not a mandatory act, and “The Developer” had no vested right

and was subject to all the requirements of the “S.M.A.” and

“The City's” subdivision ordinance that was in force at the time

of the approval of the tentative map, plus the express conditions

of the said approval as set forth in plaintiffs’ Exhibit E are such

that they required the use of discretion, and thus this action was

brought within ninety days of the approval of the final map.

89. Section 66499.37 of the S.M.A., setting the time limits

in which to seck judicial review of a decision of the City

Council, clearly does not distinguish between a decision

approving a tentative map and one approving a final map. That

in this case, the City Council does not have to approve the final

map unless it is satisfied with the plan of subdivision.

Furthermore, it could act other than to approve the final map.

Accordingly, the approval of the final map by the City Council

was a decision for the purposes of Section 66499.37. Under

these circumstances, “The City” was under a duty to give the

plaintiffs notice and an opportunity to be heard but they failed

to do either.

90. The dynamics of the relationship between “The City”

and “The Developer” is such that even if the law was such that

“The City” could not act other than to approve the final map,

as a matter of fact they could withhold the approval for any

reason or no reason at all. This is so because “The Developer”

is the single largest owner of vacant real estate in the La Costa

area of the City of Carlsbad and has one project after another in

which they interface with “The City.” Furthermore, unless the

demand by “The City” is a clear overreaching and would be

extremely costly to comply with by “The Developer,” they

would find time delays to seek injunctions or writs too costly to

bear. Accordingly, “The Developer” is effectively under

economic compulsion to “cooperate” with “The City;” unless

they elect to fight the decision. Thus, the City Council can

exercise discretion and disapprove a final map, even though it

complies with the conditions of the tentative map. The Court

should take judicial notice of these facts.

91. As to the hearings leading up to the approval of the

tentative map, the plaintiffs admit to having received notice, but

State that the notice was fatally defective for the following

reasons:

(a) it failed to state that the decision on the tentative

map was or could be the final decision on the application, and if

judicial review was desired the objector had only 90 days within

which to do so;

(b) it failed to state that the approval of the final

map would be made without notice and without a hearing and

that it would be, or could be, only a ministerial act and not

subject to review;

decision they may lose valuable property rights by virtue of the

doctrines of res judicata and/or collateral estoppel.

92. At all times herein mentioned there was in full force

and effect an ordinance of “The City” which provides, in

substance, that time limits for judicial review of any decision of

“The City,” made pursuant to Code of Civil Procedure §

1094.5, afford certain individuals “actual notice” of any

decision affecting their rights. Said notice must state that, “Any

petition or paper seeking judicial review must be filed in the

appropriate court not later than the ninetieth day following the

date on which the decision becomes final; . . .” (Chapter 1.16

§1.16.010).

93. That “The City” has a clear duty to advise a party to

an adjudicatory proceeding of the time limit within which to

seek judicial review of the decision in an action under Section

1094.5; all the more so they have a duty to plaintiffs who have

Substantial and significant property rights at risk by virtue of

proceedings under their Subdivision Ordinance. The fact that a

hearing leading up to a final decision has the unfortunate and

misleading label of “tentative approval” of the map, further

exasperates objectors and lulls them into a false sense of

security, and “The City” is under an affirmative duty to furnish

persons entitled to notice to explain that tentative is final and the

consequences of that fact.

94. Neither the hearing nor the notice conform to the

standards of the “due process” clause of the Federal or State

Constitution. Therefore, the decision is null and void as to

plaintiffs and should be set aside as being unconstitutional as

applied to plaintiffs in this case.

95. The Subdivision Ordinance of “The City” as well as

“S.M.A.” is invalid and unenforceable on its face and as

construed and as applied by “The City” as against the

plaintiffs. It violates the due process clause and the equal

protection clause of the United States Constitution as well as the

California Constitution.

96. The hearings hereinabove identified were a sham and

a fraud on the plaintiffs. “The City” knew or should have

known that the notice and hearing provided was an abuse of

authority and discretion. Substantial and significant property

interests of the plaintiffs were involved and the notice given was

not meaningful. In fact, the notice given by “The City” was

false and misleading by failing to expressly notify plaintiffs of

the time limit within which to seek judicial review together with

the disastrous consequences of res judicata and/or collateral

estoppel for any cause of action the plaintiffs have or could

have. The hearings did not permit discovery. They limited the

individual to five minutes and group spokespersons to ten

minutes. In addition, there was no right of cross-examination of

witnesses who testified for “The City” or “The Developer.”

Furthermore, “The City” and “The Developer” were permitted

to give their arguments and conclusions without any factual

basis and without any time limitation. Lastly, plaintiffs were

given no opportunity to rebut the testimony which was

presented in support of the plan.

97. The Court is requested to take judicial notice that the

City Council had discretion to determine the facts; that a hearing

is required by law; that any interested person may appear at

such hearing and shall be heard; and that evidence is required to

be taken.

98. The plaintiffs have exhausted their administrative

remedies and have no plain and speedy remedy in the ordinary

course of the law other than that which this complaint provides.

99. That pursuant to Government Code § 1028.2 and/or

Code of Civil Procedure §1028.5, the plaintiffs are requesting

reasonable attorney's fees and expenses in addition to other

ordinary and necessary costs incurred in this case as well as

private attorney's general fees.

100. That based upon the above and foregoing, plaintiffs

allege that a writ of mandate is necessary to protect the

substantial rights of the plaintiffs and each of them and that

substantial damages will be suffered by them if the request for

the writ is denied. Such damages include the diminution in

value and the loss of use and enjoyment of their property.

101. The first notice that the plaintiffs had as to the nature

and extent of their damages occurred the first part of August

1991, when “The Developer,” through its employees and

agents, commenced grading and installing storm sewers on the

property in question (P.1.Q.) with trucks, bulldozers, back hoes,

earth movers and miscellaneous construction equipment, and

used a driveway which is across the street and less than 100 feet

west of the named plaintiffs’ property, for ingress and egress.

This is a continuing nuisance and can be expected throughout

construction and thereafter, when vehicles of all descriptions will

(and at all hours of the day and night) be coming in and out to

the 132 home subdivision.

102. That “The. City” knew or should have known that

plaintiffs believed that they had notice of all their rights; that the

plaintiffs relied that “The City” had given them full notice of

their rights, and have been damaged thereby. “The City”

prevented the issues from being properly raised, and could not

have been raised by the plaintiffs, who used reasonable

diligence, and therefore are estopped from asserting the defense

of failing to seek judicial review in a timely manner.

103. “The Developer” did not acquire a vested right upon

the approval of the tentative map, they did not have a valid

building permit nor perform substantial work and incur

substantial liability in good faith reliance on the approval of the

tentative map, and thus “The City” could have and should have

held additional adjudicative, discretionary hearings subject to

notice and an opportunity for plaintiffs to be heard, which they

failed to do.

104. The Government Code provides the “The Developer”

with a statutory equivalent of a vested right; principal among

these are the Development Agreement, §§65864-65869.5, and

the Vesting Map Act, §§66498.1 - 66498.9. “The Developer”

did not avail itself of this protection.

105. Government Code §66468 provides that the filing for

record of the final map shall automatically and finally

determine the validity of such map. The final map in this case

was not filed until December 20, 1991, as document number

1991-0662811, two full months after plaintiffs’ suit was on file.

106. Chapter 4, Article 1 of the “S.M.A.” provides the

requirements for approval of a subdivision. § 66473 provides

that a map shall be disapproved for failure to meet the

requirements of the “S.M.A.” or the local ordinance. The only

qualification being that “. . . a final map shall be disapproved

only for failure to meet or perform requirements or conditions

which were applicable to the subdivision at the time of the

approval of the tentative map .. .”

107. Further, §66474 provides in part that a map shall be

denied if the design or improvement of the proposed

subdivision: (a) is not consistent with the general and specific

plans of the community, or (b) is likely to cause substantial

environmental damage.

108. The facts alleged in this complaint support the

allegations of the creation of a nuisance, trespass, and air

pollution, thus was not consistent with the general and specific

plans of the community and is and will cause substantial

environmental damage.

109. That the plaintiffs received no notice and no

opportunity to a hearing of the proceedings leading up to the

approval of the final map which was, or ought to have been, an

adjudicative, discretionary hearing.

110. The plaintiffs filed their complaint within forty-five

days from the approval of the final map (and within two and a

half months from the commencement of the site preparation)

and are entitled to judicial review.

111. As hereinabove alleged, Title 1, § 1.16.010 of the City

of Carlsbad Municipal Code provides for time limits for judicial

review. It provides in substance that upon making a final

decision, “The City” shall provide notice to the party the time

within which judicial review must be sought as part of the

decision. No such notice was given by “The City” to these

plaintiffs.

112. $1.16.020 of said Title, though not applicable to these

plaintiffs, bars court action to “ . . . attack, review, set aside,

void, annul or seek damages or compensation for any city

decision . . .” (emphasis added). Government Code §66499.37

which bars court action does not bar actions which only “seek

damages or compensation.”

113. That the plaintiffs allege upon information and belief

and based thereon state the facts to be that they have sought

judicial revision within 90 days of September 3, 1991,

approving the final map and that decision was the final and

appealable order.

114. That plaintiffs allege upon information and belief and

based thereon state the facts to be that: They were not parties

nor in privity with the parties in the proceeding below;

§66499.37 of “S.M.A.” is not applicable to an action for

compensation.

115. Government Code §66499.37 only applies to an

action to attack the decision of the public agency involved.

Count I of this complaint only seeks compensation because of

the damages and taking caused by the decision to relocate the

gate.

116. In this count, plaintiffs do not seek a writ of mandate

unless the court finds that the approval of the final map was the

final and appealable order or that the proceedings were

unconstitutional and null and void.

117. That in the event that the court finds that the

complaint was filed in a timely manner, the plaintiffs allege and

State the facts to be that the decision to relocate the gate based

on public safety, did not advance the legitimate governmental

interest because the fact is that it created a greater danger for the

public and was counter-productive and did not substantially

advance a legitimate governmental interest.

118. The plaintiffs believe and state the facts to be that

“The City's” decision was improvident and flawed, and there is

a greater danger of injuries and fatalities by increasing the

traffic that exits from Corte de la Vista because it is a “blind”

exit to northbound traffic going north and constitutes a

negligent design of traffic management.

WHEREFORE, plaintiffs pray for a judgment against ‘The

City” as follows (if they do not voluntariy relocate the access to

the “Fairways Project” to Alicante Road as originally

designated by “The Developer”):

A. Make findings of fact and conclusions of law and

enter judgment thereon that the plaintiffs were not parties nor in

privity with the parties relating to the “decision” of “The

City” to locate the access to the “Fairways Project” on Corte de

la Vista;

B. Make findings of fact and conclusions of law and

enter judgment thereon that § 66499.37 of the “S.M.A.” {s not

applicable to bar plaintiffs from an action or actions for

compensation;

C. Make findings of fact and conclusions of law and

enter judgment thereon that “The City” is estopped from

defending plaintiffs' action for just compensation on the basis of

failing to seek judicial review in a timely manner,

D. Make findings of fact and conclusions of law that the

proceeding resulting in “The City’s” decision to relocate the

access to the “Fairways Project” was in violation of the

plaintiffs’ due process and equal protection rights under both

the federal Constitution and the State of Califomia Constitution;

E. Make findings of fact and conclusions of law that the

Subdivision Ordinance and “S.M.A.” statute are both

unconstitutional on their face and as applied to plaintiffs.

F. For a supplemental hearing re attorney fees and costs,

including the cost of the record in the proceeding before “The

City” if necessary, and attomeys' fees for services as a private

Attomey General;

G. For such other and further relief as may be meet and

proper in the premises.

Dated: May 22, 1992

THOMAS A. MASS JANET A. MASS

Plaintiff In Pro Per - Plaintiff In Pro Per

VERIFICATION

I; THOMAS A. MASS, am one of the plaintiffs in the above-

entitled action. I have read the foregoing SECOND AMENDED

COMPLAINT FOR INVERSE CONDEMNATION AND

NUISANCE REQUESTING DECLARATORY RELIEF AND IN

THE ALTERNATIVE A WRIT OF MANDATE, and know the

contents thereof. The same is true of my own knowledge except

as to those matters which are therein alleged on information and

belief, and as to those matters, I believe them to be true.

I declare under penalty of perjury under the laws of the

State of Califomia that the foregoing is true and correct.

Executed at Carlsbad, California, this 22nd day of May, 1992.

THOMAS A. MASS

~* 2851 Torry Court

Carlsbad, CA 92009

Phone: (619) 931-0100

FAX: (619) 438-7850

PLAINTIFFS DEMAND TRIAL BY JURY

PROOF OF SERVICE OMITTED IN PRINTING

From the Desk of

THOMAS A. MASS

7 August 1991

The Villages of La Costa

P.O. Box 9000-266

Carlsbad, CA 92009

Attention: Mrs. Bradstreet

Re: Fieldstone Company's Fairways Project

Dear Neighbor:

I have been meaning to go on record with you as to my

objections to your project, The Fairways. This a.m. at 4:30

your grading contractor started unloading its heavy duty

equipment and it sounded like “operation Fairway storm." This

"serenade" under our bedroom window provided me with the

motivation to get this letter off without delay.

As you know, Courte de La Vista “T's” into Alicante Road,

and this exit is blind to traffic coming up the hill. Because of

the tenforld increase in traffic, it's reasonable to expect an

accident and all the tragic things that will result. Therefore, I

urge you not to plac eyour entrance on Courte de La Vista, but

rather, on Alicante Road.

The entrance of Courte de La Vista also adversely affects the

residential nature of the street we front on; we can expect noise,

fumes, flashing headlights in our homes, etc., which were

designed to capitalize on the tranquil view and fresh air. You

have made a residential low use road into a high traffic artery.

EXHIBIT A

You have shown no sensitivity for the safety or aesthetics of

our community. In mitigation, you should minimize these

assaults on our environment by such steps as" low one-story

homes at the high entryway; install glass walls on the homes that

- front on Courte de La Vista between Alicante Road and the

entryway; speed and quiet zone signs; and appropriate

landscaping.

Your future conduct will show your intentions.

Very truly yours,

THOMAS A. MASS

TAM/ds

16.

17.

PLAINTIFFS’ GROUP EXHIBIT B

From balcony looking down at terrace towards the S.W.

From balcony looking down at terrace toward the S.E.

From balcony looking toward the S.E.

From balcony looking toward the S.E. and Barbecue

Balcony off of master bedroom suite looke E.

Terrace from E. side looking S.

Terrace from W. side looking S.E.

Terrace from N.W. comer looking to S.E. comer.

Terrace from N.E. corner looking to S.W. comer.

Terrace from E. side looking toward the W.

Terrace fromhe S.E. comer looking N.W.

Steam table, grill, sink, and refrigerator in entertainment

center.

Terrace from entertainment center to the spa.

From entertainment center to house off of living room.

Panorama looking W.S.W.

Panorama jooking S.W.

Panorama looking S.

EXHIBIT B

eee

18. Panorama looking S.S.E.

19. Panorama looking S.E.

20. Panorama looking E.

All photographs in plaintiffs group exhibit were taken by

Thomas A. Mass on the 28th day of September 1991. The

directions indicated above are only approximate and relative.

The photographs (B1 to B20 are a true representation of what

they purport to show.

= _ EP rr EL

es ee po, Aa wom P A

NOTICE OF PUBLIC HEARING

CT _20-23/PUD 90-23/HDP 90-29

NOTICE IS HEREBY GIVEN that the City Council of the City

of Carlsbad will hold a public hearing at the City Council

Chambers, 1200 Carlsbad Village Drive (formerly Elm Avenue),

Carlsbad, California, at 6:00 P.M., on Tuesday, December 18,

1990, to consider an application for a tentative map, planned

unit development and hillside development permit for 132

single family detached homes on 41.09 acres of land in the

RDM zone and Local Facilities Mnagement Zone 6 on property

generally located south of Corte de la Vista, east of Alicante

Road and north of the La Costa Gold Course and more

particularly described as:

Parcel 2 of Parcel Map No. 11722, in the City of

Carlsbad, County of San Diego, according to map

thereof filed in e office of the County Recorder of

San Diego County on October 10, 1981 as file no.

81-322184 of Official Records.

If you have any questions regarding this matter, please call the

Planning Department at 438-1161.

If you challenge the Tentative Tract Map/Planned Unit

Development/Hillside Development Permit in court, you may be

limited to raising only those issues you or someone else raised at

the public hearing described in this notice or in written

correspondence delivered to the City of Carlsbad City Clerk's

Office at or prior to the public hearing.

APPLICANT: Fieldstone Company

PUBLISH: December 6, 1990

CARLSBAD CITY COUNCIL

MAP OMITTED IN PRINTING

EXHIBIT C

DECEMBER 18, 1990

NOTICE TO THE PUBLIC

1. Citizens may have an item listed on the agenda by

sumbitting a letter to the City Manager ten (10) days

prior to the meeting.

2. It is Council's policy to adjourn meetings no later than

10:00 P.M.

3. Meetings are divided into categories shown below.

4. When you are called to speak, please come forward and state

your name and address.

CONSENT CALENDAR: If you desire to talk about an item

on the Consent Calendar, a written "Request to Speak" form

must be filed with the City Clerk prior to the time the Consent

Calendar is called. The items listed under Consent Calendar are

considered routine and will be enacted by one motion as listed.

There will be no separate discussion on these items prior to the

bote, unless an item is removed.

PUBLIC COMMENT: If you desire to speak about an item pot

listed on the agenda, a pink "Time Reservation Request" form

should be filed with the City Clerk. A total of 15 minutes is

provided for the Public Comment portion of the Agenda.

Speakers are limited to three (3) minutes each.

EXHIBIT D

In conformance with the Brown Act, no action can occur on

items presented during Public Comment.

PUBLIC HEARINGS: It is not necessary to file a request to

speak on items listed on this agend as Public Hearings.

ALL_ OTHER CATEGORIES: For all other agenda items a

"Request to Speak" form must be filed with the City Clerk

before the item is announced. There is a five (5) minute time

limit for individual speakers.

Meeting of: PLANNING COMMISSION ;

Time of Meeting: 6:00 p.m.

Date of Meeting: October 3, 1990 4

Place of Meeting: City Council Chambers fF

MINUTES OMITTED IN PRINTING, EXCEPT PAGE 2,

PARAGRAPH 3:

"The project is proposed as a gated community.

The gate design is single access off Corte de la Vista

and it provides a turnaround area at the entrance.

The location of the single access was dictated by

staff. The original proposal came in with an. access

off Alicante Road; however, for traffic safety

purposes, staff requested that the entrance be moved

to Corte de la Vista.”

EXHIBIT E

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR

THE COUNTY OF SAN DIEGO

THOMAS A. MASS and JANET A. MASS, Plaintiffs

CITY OF CARLSBAD, a Municipal Corporation;

FIELDSTONE/LA COSTA ASSOCIATES LIMITED

PARTNERSHIPP, a Califomia Limited Partnership, Defendants

Case No. N53303

THIRD AMENDED COMPLAINT FOR PLAINTIFFS'

THIRD CAUSE OF ACTION FOR A WRIT OF

MANDATE IN THE ALTERNATIVE.

PLAINTIFFS RESPECTFULLY REPRESENT:

Procedural Perspective

On July 27, 1992 this Court entered an order sustaining

defendants’ demurrer to plaintiffs’ second amended complaint in

its entirety. Plaintiffs’ First Cause of Action for inverse

condemnation against "The City," and their Second Cause of

Action based on nuisance/negligence against "The Developer"

were sustained without leave to amend. As to the plaintiffs’

Third Cause of Action which was in the alternative requesting a

Writ of Mandate against "The City," the Court granted plaintiffs

ten days in which to amend.

Procedural Prospective

This third cause of action is based on only one set of facts

and alternative theories of recovery. Primary among them is an

action for deprivation of constitutional rights under color of

state law, brought pursuant to the federal Civil Rights Act, Title

42 U.S.C. §1983, providing remedies for the defendants’

deprivation of plaintiffs’ civil rights. The facts set forth

hereinafter would also support recovery on the basis of

California common law, and statutory law, as well as by the

Fourteenth Amendment guaranty of due process of law clause

of the federal Constitution and Article I, §7 of the California

Constitution both of which require a meaningful notice and a

fair trial before an individual can be deprived by the

government of a fundamental interest, including their interest in

real estate. By this action plaintiffs seek all legal and equitable

relief to which they may be entitled to as redress, including, but

not limited to, compensatory, declaratory and injunctive relief as

well as attorney's fees and costs, and prejudgment interest.

Stating separate causes of action for each of the various

theories available would not aid the parties nor the Court, but

would complicate the plaintiffs’ third cause of action, would be

redundant, and not serve the purposes for which separate

theories of recovery require that they be set forth in separate

causes of action.

THIRD CAUSE OF ACTION

Writ of Mandate

(In The Alternative) é

(Plaintiffs vs. "The City" Defendant)

1. Plaintiffs are citizens of the United States and are the

owners and reside in the following described real property in the

city of Carlsbad, San Diego County, California:

Lot 26 of Carlsbad Tract No. 81-29 in the City of

Carlsbad, County of San Diego, State of California,

according to Map thereof No. 11423, filed in the

Office of the County Recorder of San Diego,

January 20, 1986, and commonly known as 2851

Torry Court.

2. The above described property is contiguous to said

Torry Court on the north and Corte de la Vista on the south and

is within a gated community known as Alicante Hills and is

bounded on the east by Bolero Street and on the west by

Alicante Road.

Wenibenineeins tree sr meme paren

3. The plaintiffs’ home is a free standing single family

residence with a 35' x 50’ terrace on the ground floor, and a 10’

x 40' balcony on the second floor which fronts on said Corte de

la Vista.

4. Said terrace and balcony afford a 180° panoramic view

overlooking the La Costa Golf Course and a direct and

unobstructed forever view of the Batiquitos Lagoon and the

Pacific Ocean, as well as the year round prevailing ocean breeze

which is the property's unique and primary use and value.

5. The plaintiffs’ property is contiguous to the "Fairways

Project" of the defendant Fieldstone/La Costa Associates Limited

Partnership ("The Developer"), which is a planned development

of 132 single family detached residences located south of Corte

de la Vista, east of Alicante Road and north of the La Costa Golf

Course and west of San Marcos Creek.

6. The defendant City of Carlsbad is a public entity

chartered and existing under the laws of the State of California

("The City").

7. Alicante Road is a heavily traveled secondary road with

a turn lane in the median; on August 23, 1984, "The City”

barricaded Alfil Way at the western side of San Marcos Creek

and created a cul de sac at the barricade and thereby blocked

through traffic to La Costa Avenue. This street later was

renamed Corte de la Vista (court of view) and was a little used

non-through traffic residential street, not much longer than a

quarter of a mile (for a map of the area see plaintiffs’ Exhibit

a tay |

8. Plaintiffs' predecessor in title, to capitalize on the

environment created by "The City," obtained from "The City"

the necessary approval to carve out of the hillside above the new

Corte de la Vista a plateau for a stable and suitable site to build a

corridor of thirty-eight homes. The spectacular panoramic view

afforded by this location was appropriately reflected in the price

of the homes.

9. The plaintiffs’ developer obtained title to this tract of

land from "The Developer's” predecessor in title who subjected

the remainder to height restrictions.

10. The plaintiffs confirmed this fact, as well as the fact that

the original plan and map for the "Fairways Project" located the

access to the proposed project on Alicante Road, and in reliance

thereon purchased their residence as aforesaid.

11. The reason why the plaintiffs paid a premium for their

location and further enhanced their terrace with a Bar-B-Q, spa

and full landscaping, is because they use and enjoy the facilities

for year round outdoor living for their leisure and recreation.

Further, the location permitted their home to be cooled by fresh,

clean air from the ocean, making air conditioning unnecessary.

This factor was important to them for reasons of health and

comfort and because they cannot tolerate air conditioning.

12. Under the authority and direction of the Subdivision

Map Act (Government Code §§66410-66499.37) hereinafter

for convenience referred to as "S.M.A.,”" the control of the

design and improvements is vested in "The City" and it is

required to enact a subdivision ordinance to supplement and

implement the "S.M.A." which it did and is known as the

"Subdivision Ordinance” (9417 §2 (part) 1975 and is contained

in Title 20 of the Muiicipal Code).

13. That pursuant to said statute and ordinance "The

Developer" applied to "The City" for the approval of a planned

unit development, hillside development, and a subdivision map

(CT90-23/PUD 90-23/HDP 90-29), and the issuance of the

related permits (map).

14. Section 20.12.080 of the Subdivision Ordinance

provides in part that the Planning Commission is authorized and

directed to: "(1) Hold a public hearing on all tentative maps.

Any interested person may appear at the hearing and shall be

heard;" likewise, Section 20.12.090 states: "(b) The City Council

shall hold a public hearing on the tentative map. Any interested

person may appear at such hearing and shall be heard."

15. The "S.M.A." provides in part that the control of the

design and improvements is vested with the city government

with consideration for their relation to the adjoining areas and

they are required to exercise discretion in determining relevant

facts. The time within which to seek judicial review is extremely

short and only a limited right to examine the reasonableness of

their decision is provided for.

16. That pursuant to Section 20.12.092 of the Subdivision

Ordinance, the plaintiffs received a notice for a meeting of the

City Council on December 18, 1990, a copy of which is attached

hereto and incorporated herein as Exhibit "C."

17. “The Developer's" original plan and map and its

application to "The City” requested that the location of the

access to the project should be on Alicante Road. "The City"

denied the request and insisted that the access be moved to Corte

de la Vista as a condition for the issuance of the necessary

approval. An employee of the Planning Department of "The

City" testified before the Planning Commission of "The City" at

their meeting of October 3, 1990, in part as follows:

"The project is proposed as a gated community.

The gate design is single access off Corte de la Vista

and it provides a turnaround area at the entrance.

The location of the single access was dictated by

staff. The original proposal came in with an access

off Alicante Road; however, for traffic safety

purposes, staff requested that the entrance be moved

to Corte de la Vista." (See page 2 of plaintiffs’

group Exhibit "E.")

18. At the meeting before the City Council on December

18, 1990, employees of the Building, Engineering and Planning

Department reviewed the background and the plans and

specifications of "The Fairways Project." The Assistant City

Attomey also made comments and recommendations.

19. Employees and consultants of "The Developer"

(Fieldstone Company) then put on a slick "dog and pony"

demonstration, including, maps, photographs, and a slide

presentation in support of the "Fairways Project."

20. That plaintiffs appeared at said meeting along with

other interested parties and pursuant to the rules of "The City"

were granted five minutes in which to speak as individuals and

ten minutes for presentations on behalf of a group. A copy of

the Agenda is attached hereto in support of this allegation as

. Exhibit "D."| That the procedures are designed and applied

merely to evoke and record a public response and the process

does not guarantce an affected landowner a meaningful

predeprivation hearing. There is no opportunity to present a

case and, at best, you may identify your points. There is no

pretense that you can present evidence in support of your case

nor even an opportunity to persuade. The failure of a

meaningful notice coupled with this type of hearing is a sham.

21. That the plaintiff on his own behalf and also as the

spokesperson for the Alicante Hills Homeowners Association, a

California Corporation, voiced his objections to the Planning

Department, the Planning Commission, as well as the City

Council, to wit: The location of the access to the Project should

be moved from Corte de la Vista back to Alicante Road where

“The Developer" had originally requested it; that by diverting

the traffic from Alicante Road to Corte de la Vista, the City of

Carlsbad has increased tenfold the probability that an accident

would occur at the "blind spot" which exists when exiting Corte

de la Vista on to Alicante Road; that the costs associated with

compensating individuals for injuries incurred as a result of

approval of the tentative map, with knowledge of such increased

risks, will be unfairly born by the taxpayers of Carlsbad; and

lastly, that plaintiffs will be denied the use and enjoyment of

their property and the property value will decrease substantially

due to the significant increase in noise, light, fumes, dust, dirt,

and vibrations which will emanate from the traffic generated by

the 132 single family homes in and out of the planned unit

development gate, the entrance being located below plaintiffs’

property on Corte de la Vista, instead of Alicante Road. A copy

of the Planning Commission's minutes of October 3, 1990 is

attached hereto and incorporated herein by reference as Exhibit

“RM

22. Thereafter, both "The Developer" and "The City" were

given unlimited time, as they were in making their original

presentation, to rebut the objections made by the public,

including your plaintiffs. At no time was plaintiff given an

opportunity to cross-examine the witnesses who testified in favor

—

of the plan. Nor was plaintiff allowed time to rebut the evidence

which was marshaled in support of the plan.

23. On or about January 8, 1991, the tentative map was

approved by the City of Carlsbad. However, the tentative map

was subject to a number of conditions. That these conditions

involve issues the resolution of which require the exercise of

judgment, discretion, and the careful balancing of conflicting

interests which is the essence of the "adjudicative” process. In }

addition, the tentative map still had to comply with the final map

requirements contained in Chapter 20.20 of the "City's"

Subdivision Ordinance, which also calls for the adjudicative

process.

24. This notwithstanding, without further notice or public

hearings, the final map was approved by the City Council on or

about September 3, 1991. This fact was discovered by plaintiffs

on September 6, 1991, upon making inquiry with the Planning

Department of "The City" as to the time limitation in which to

seek judicial review of the City Council's decision. Plaintiffs

were informed that the specific period of time in which to seek

judicial review was not within the offhand knowledge of this

particular employee (nor did he or the plaintiffs know that the

time was to be computed from the approval of the tentative

map), but that an investigation would be made and an answer

provided as soon as possible. To date, plaintiffs have yet to hear

from any employee at the Planning Commission as to the

limited time in which to seek judicial review of the City

Council's decision. At no time did "The City" advise plaintiffs

that the time to appeal is calculated from the date the “tentative”

map is approved, but to the contrary, led plaintiffs to believe that

the approval of the final map was the final and appealable order.

25. That the plaintiffs believe, and so state the facts to be,

that in this case, the approval of the final subdivision map was

not a mandatory act, and "The Developer" had no vested right

and was subject to all the requirements of the "S.M.A." and "The

City's" subdivision ordinance that was in force at the time of the

approval of the tentative map, plus the express conditions of the

said approval as set forth in plaintiffs’ Exhibit "E" are such that

they required the use of discretion, and thus this action was

NOI STE IOI es CRE Te .

TR Ee oe TE |

brought within ninety days of the adjudicative hearing and the

decision approving the final map.

26. Section 66499.37 of the S.M.A., setting the time limits

in which to seck judicial review of a decision of the City

Council, clearly does not distinguish between a decision

approving a tentative map and one approving a final map. That

in this case, the City Council does not have to approve the final

map unless it is satisfied with the plan of subdivision.

Furthermore, it could act other than to approve the final map.

Accordingly, the approval of the final map by the City Council

was a decision for the purposes of Section 66499.37. Under

these circumstances, "The City" was under a duty to give the

piaintiffs notice and an opportunity to be heard but they failed

to do either.

27. The dynamics of the relationship between "The City"

and "The Developer” is such that even if the law stated that "The

City" could not act other than to approve the final map, as a

practical matter and as a matter of fact, they could withhold the

approval for any reason or no reason at all. This is so because

"The Developer” is the single largest owner of vacant real estate

in the La Costa area of the City of Carlsbad and has one project

after another in which they interface with "The City."

Furthermore, unless the demand by "The City" was a clear

overreaching or would be too costly for "The Developer" to

comply with, they would find time delays to seek injunctions or

writs too costly to bear. Accordingly, "The Developer" is

effectively under economic compulsion to "cooperate" with

"The City." Thus, the City Council can exercise its discretion

and disapprove a final map, even though "The Developer"

complies with the conditions of the tentative map. The Court

should take judicial notice of these facts.

28. As to the hearings leading up to the approval of the

tentative map, the plaintiffs admit to having received "notice,"

but state that the "notice" was fatally defective for the following

reasons:

(a) it failed to state that the decision on the tentative

map was or could be the final decision on the application, and if

judicial review was desired the objector had only 90 days within

which to do so;

(b) it failed to state that the approval of the final map

would be made without notice and without a hearing and that it

would be, or could be, only a ministerial act and not subject to

review;

decision they may lose valuable property rights by virtue of the

doctrines of res judicata and/or collateral estoppel and the statute

of limitations.

29. At all times herein mentioned there was in full force

and effect an ordinance of "The City" which provides, in

substance, that time limits for judicial review of any decision of

"The City," made pursuant to Code of Civil Procedure §1094.5,

afford certain individuals "actual notice" of any decision

affecting their rights. Said notice must state that, "Any petition

or paper seeking judicial review must be filed in the appropriate

court not later than the ninetieth day following the date on

which the decision becomes final;...". (Chapter 1.16 §1.16.010). |

30. That "The City” has a clear duty to advise a party to an

adjudicatory proceeding of the time limit within which to seek

judicial review of the decision in an action under Section

1094.5; all the more so they have a duty to plaintiffs who have

substantial and significant property rights at risk by virtue of

proceedings under their Subdivision Ordinance. The fact that a

hearing leading up to a final decision has the unfortunate and

misleading label of "tentative approval" of the map, further

exasperates objectors and lulls them into a false sense of

security, and "The City" is under an affirmative duty to furnish

persons with notice to explain that tentative action may be final

and the consequences of that fact, which they failed to do.

31. Neither the hearing nor the notice conform to the

standards of the "due process" clause of the Federal or State

Constitution. Therefore, the decision is null and void as to

plaintiffs and should be set aside as being unconstitutional as

applied to plaintiffs in this case.

32. The Subdivision Ordinance of “The City" as well as

"S.M.A." is invalid and unenforceable on its face and as

construed and as applied by "The City” as against the plaintiffs.

It violates the due process clause and the equal protection clause

of the United States Constitution as well as the California

Constitution.

33. The hearings hereinabove identified were a sham and a

fraud on the plaintiffs. "The City" knew or should have known

that the notice and hearing provided was an abuse of authority

and discretion. Substantial and significant property interests of

the plaintiffs were involved and the notice given was not

meaningful and was fatally defective. In fact, the notice given

by "The City" was false and misleading by failing to expressly

notify plaintiffs of the time limit within which to seek judicial

review together with the disastrous consequences of res judicata

and/or collateral estoppel and the statute of limitations for any

cause of action the plaintiffs have or could have. The hearings

did not permit discovery. They limited the individual to five

minutes and group spokespersons to ten minutes. In addition,

there was no right of cross-examination of witnesses who

testified for "The City” or "The Developer." Furthermore, "The

City" and "The Developer" were permitted to give their

arguments and conclusions without any factual basis and

without any time limitation. Lastly, plaintiffs were given no

Opportunity to rebut the testimony which was presented in

support of the plan.

34. The Court is requested to take judicial notice that the

City Council had discretion to determine the facts; that a hearing

is required by law; that any interested person may appear at

such hearing and shall be heard; and that evidence is required to

be taken (none of which occurred in this case).

35. The plaintiffs have exhausted their administrative

remedies and have no plain and speedy remedy in the ordinary

course of the law other than that which this complaint provides.

36. That pursuant to Government Code §1028.2 and/or

Code of Civil Procedure §1028.5, the plaintiffs are requesting

reasonable attorney's fees and expenses in addition to other

ordinary and necessary costs incurred in this case as well as

private attorney's general fees.

37. That based upon the above and foregoing, plaintiffs

allege that a writ of mandate is necessary to protect the

substantial rights of the plaintiffs and each of them and that

substantial damages will be suffered by them if the request for

the writ is denied. Such damages include the diminution in

value and the loss of use and enjoyment of their property and is

in excess of $100,000.00.

38. The first notice that the plaintiffs had as to the nature

and extent of their damages occurred the first part of August

1991, when "The Developer,” through its employees and agents,

commenced grading and installing storm sewers on the property

in question (P.I.Q.) with trucks, bulldozers, back hoes, earth

movers and miscellaneous construction equipment, and used a

driveway which is across the street and less than 100 feet west of

the named plaintiffs’ property, for ingress and egress.

(Plaintiffs + hibit "A.") This is a continuing nuisance and can

be expected throughout construction which is expected to take

several years, and thereafter, when vehicles of ali descriptions

will (and at all hours of the day and night) be coming in and out

of the 132 home subdivision.

39. That "The City" knew or should have known (because

they led them to believe), that plaintiffs were lulled into

believing that they had been given notice of all their rights; that

the plaintiffs relied on "The City" to give them a meaningful

notice, "The City" misplaced that trust and reliance, and

plaintiffs have been damaged thereby. “The City" prevented the

issues from being properly raised, and the issues could not have

been raised by the plaintiffs, who used reasonable diligence, and

therefore "The City" is estopped from asserting the defense of

failing to seek judicial review in a timely manner.

40. "The Developer" did not acquire a vested right upon the

approval of the tentative map, they did not have a valid building

permit nor did they perform substantial work and incur

substantial liability in good faith reliance on the approval of the

tentative map, and thus "The City" could have and should have

held additional adjudicative, discretionary hearings prior to their

decision approving the final map subject to notice and an

opportunity for plaintiffs to be heard, which they failed to do.

41. The Government Code provides the "The Developer"

with a statutory equivalent of a vested right; principal among

these are the Development Agreement, §§65864-65869.5, and

the Vesting Map Act, §§66498.1 - 66498.9. "The Developer"

did not avail itself of this protection.

42. Government Code §66468 provides that the filing for

record of the final map shall automatically and finally

determine the validity of such map. The final map in this case

was not filed until December 20, 1991, as document number

1991-0662811, two full months after plaintiffs’ suit was filed.

43. Chapter 4, Article 1 of the “S.M.A." provides the

requirements for approval of a subdivision. §66473 provides

that a map shall be disapproved for failure to meet the

requirements of the "S.M.A." or the local ordinance. The only

qualification being that ". . . a final map shall be disapproved

only for failure to meet or perform requirements or conditions

which were applicable to the subdivision at the time of the

approval of the tentative map .. .". The requirements were not

met and are not to this day.

44. Further, §66474 provides in part that a map shall be

denied if the design or improvement of the proposed

subdivision: (a) is not consistent with the general and specific

plans of the community, or (b) is likely to cause substantial

environmental damage.

45. The facts alleged in this complaint support the

allegations of the creation of a nuisance, trespass, and air

pollution, thus the approval of a final map, could not be

consistent with the general and specific plans of the community

and is and will continue to cause substantial environmental

damage.

46. That the plaintiffs received no notice and no

Opportunity to a hearing of the proceedings leading up to the

approval of the final map which was, or ought to have been, an

adjudicative, discretionary hearing.

47. The plaintiffs filed their complaint within forty-five

days from the approval of the final map (and within two and a

half months from the commencement of the site preparation)

and are entitled to judicial review.

48. As hereinabove alleged, Title 1, §1.16.010 of the City

of Carlsbad Municipal Code provides for time limits for judicial

review. It provides in substance that upon making a final

decision, "The City" shall provide notice to the party stating the

time within which judicial review must be sought as part of the

decision. No such notice was given by "The City" to these

plaintiffs. Because of the special relationship between "The

City" and the plaintiffs as citizens, they had a duty to give

plaintiffs a proper notice and a meaningful hearing and they

breached that duty.

49. §1.16.020 of said Title, though not applicable to these

plaintiffs, bars court action to". . . attack, review, set aside, void,

annul or seek damages or compensation for any city decision..."

(emphasis added). Government Code §66499.37 which bars

court action does not bar actions which only "seek damages or

compensation,” and demonstrates how easy it is to bar attacks

and as well as compensatory damages, and "The City" used this

device and is charged with actual notice of the distinction

between Government Code §66499.37 which does not bar

actions for compensatory damages.

50. That the plaintiffs allege upon information and belief

and based thereon state the facts to be that they have sought

judicial review within 90 days of September 3, 1991, the date of

approval of the final map and that such decision was the final

and appealable order.

51. That plaintiffs allege upon information and belief and

based thereon state the facts to be that: They were not parties

nor in privity with the parties in the proceeding below;

§66499.37 of "S.M.A." is not applicable to an action for

compensation or damages.

52. Government Code §66499.37 only applies to an action

to attack the decision of the public agency involved. Count I of

this complaint only seeks compensation because of the damages

and/or taking caused by the decision to divert the traffic.

53. In this count, plaintiffs do not seck a writ of mandate

unless the court finds that the approval of the final map was the i

final and appealable order. In the plaintiffs’ claim of the denial

of both procedural and substantive due process and their civil

—eEOoOT

rights, the writ of mandate cause of action is used as a judicial

vehicle so the Court can examine the proceedings leading to the

decisions approving the tentative and final maps. It does not

challenge the decisions (which under the law do not exist), but

only challenges the acts and omissions which were antecedent or

retroactive to the “decisions.”

54. That in the event that the court finds that the complaint

was filed in a timely manner, the plaintiffs allege and state the

facts to be that the decision to divert traffic based on public

safety, did not advance the legitimate governmental interest

because the fact is that it created a dangerous condition on

public property and was counter-productive and did not

substantially advance a legitimate governmental interest.

55. The plaintiffs believe and state the facts to be that "The

City's" decision was improvident and flawed, and there is a

greater danger of injuries and fatalities by increasing the traffic

that exits from Corte de la Vista because it is a "blind" exit to

northbound traffic and constitutes a negligent design of traffic

management and creates a dangerous condition on public

property.

56. That notwithstanding that "The City” had a common law

duty, a state statutory duty, a federal statutory duty (Federal

Civil Rights Act, 42 U.S.C. §1983), and a constitutional duty

also, both state and federal, to afford plaintiffs procedural and

substantive due process and equal protection, they failed and

neglected to provide the plaintiffs the necessary protection they

were entitled to and as a consequence and proximate cause

thereof, plaintiffs have been damaged as herein alleged. The

denial of their civil rights has resulted in the denial of their

property rights which is the measure of damages plaintiffs seek.

57. "The City,” by diverting the traffic for the "Fairway

Project" from Alicante Road to Corte de la Vista, violated

§66474 of the "S.M.A." which provides that a map ghall be

denied approval if the design or improvement of the proposed

subdivision: (a) is not consistent with the general and specific

plans of the community, or (b) is likely to cause substantial

environmental damage.

58. §66474 of the "S.M.A.” was in full force and effect at

the time the tentative map was approved and was applicable then

as well as at the time the final map was approved. By denying

the plaintiffs proper notice and a meaningful hearing to the

proceeding leading up to the approval of the tentative map, and

no notice or hearing at all as to the approval of the final map,

"The City" breached its duty to the plaintiffs and is responsible

to the plaintiffs for their damages which were proximately

caused by their aforesaid acts and omissions.

59. That as a direct and necessary result of the official

governmental action of diverting the traffic to this 132 home

development from Alicante Road to Corte de la Vista with the

only entrance located across the street from the plaintiffs’ home,

the aforesaid noise, dirt, odor, air pollution, flashing headlights

and vibrations are, and will continue to cause, a substantial

interference with the use and enjoyment by plaintiffs of

plaintiffs’ homes, the loss of reasonable investment-backed

expectations, and a diminution in its primary use and value

inasmuch as the volume of traffic will increase more than

tenfold to approximately 1500 vehicular sorties a day, all

focused across the street from plaintiffs’ residence.

60. As a direct result and as a proximate consequence of

the dust, dirt, debris, noxious odors, flashing lights and noise, the

plaintiffs have been and will continue to be peculiarly and

substantially damaged. That "The City,” by diverting the traffic

to the "Fairways Project" across the street from the plaintiffs’

homes, has caused an invasion and appropriation of their

valuable property rights and their investment-backed

expectations, which has rendered their property untenantable to

the plaintiffs, being the essence of why they purchased the

property for their residence and paid a premium for its location

and view and constitutes a loss of its primary use and value and

thus is a compensable taking under Article I, Section 19 of the

California Constitution, as well as the Fifth and Fourteenth

Amendment of the federal Constitution.

61. That based upon the factual allegations herein, the

plaintiffs state the facts to be and allege as follows:

(a) That the nuisance-trespass type activity that results

from the traffic generated has caused a diminution in the value

of the plaintiffs’ property and has substantially interfered with

their use and enjoyment of their home by imposing on them a

direct, peculiar and substantial burden, and as such, they are

entitled to just compensation as a result of the taking and/or

damaging of their property;

(b) That the air pollution caused by the traffic is

effective physical appropriation, occupation or interference of a

permanent nature by contaminating the air over their property,

with toxic and non-toxic gaseous solids and/or liquids, and

constitutes a compensable taking or damage and that this is true

whether the diversion of traffic achieved an important public

benefit or had only a minimal economic impact on the

plaintiffs;

to across from plaintiffs' property was not a possessory type of

activity as hereinabove alleged and only constitutes a non-

possessory type interference, the extent to which "The City's"

decision has damaged or destroyed the plaintiffs’ distinct

investment-backed expectations, as hereinabove alleged, are

compensable, and the plaintiffs are entitled to just

compensation.

(d) That the view and the prevailing ocean breeze

were not the primary reasons why the plaintiffs purchased their

home and improved the terrace at an additional cost of

$50,000.00. They were the only reasons! The view and the

breeze is still present, but because of the nuisance, trespass and

air pollution described herein, the plaintiffs have been denied

use Of these features. They have been denied the use of their

terrace because of the dirt, noise and odors; and that although

the view can be enjoyed from indoors, the house cannot be

ventilated and cooled through open windows and doors by the

ocean breeze because of the same dirt, noise and odors more

fully described elsewhere herein, which make opening the doors

and windows prohibitive;

(e) The plaintiffs purchased their home to enjoy the

out-of-doors living and comfortable indoor living without air-

conditioning, and both features have been substantially and

significantly damaged and/or destroyed by the defendants and

each of them as herein alleged and a commensurate diminution

and/or destruction in value;

(f) The plaintiffs have incorporated a group of

photographs into their group Exhibit B1-20 which demonstrates

in a tangible and concrete manner that what has been alleged as

the reason for their purchase and subsequent improvements was

not an after-thought but was a distinct and reasonable

investment-backed expectation.

62. That notwithstanding that no claim is required to be

filed against "The City” by the plaintiffs in order to maintain

their action (Government Code §905.1), the plaintiffs did on the

26th of September, 1991, deliver to "The City” a copy of a first

draft of a complaint, which included causes of action for writ of

mandate, inverse condemnation, declaratory relief to determine

the validity of the ordinance and statute in question, negligence

and nuisance.

63. As a result of the above-described damages to the

named plaintiffs’ property, they have been damaged in excess of

one hundred thousand ($100,000.00) dollars, and by this

reference plaintiffs hereby incorporate the specific allegations

of damages in this complaint set forth.

64. As a direct and proximate cause of "The City's”

diverting the traffic from Alicante Road, the pattern and volume

of traffic on Corte de la Vista has resulted in the creation of the

nuisance and air pollution herein alleged.

65. Plaintiffs have received no compensation for their

damages, nor has "The City” instituted eminent domain

proceedings. This cause is in the alternative and in lieu of

plaintiffs’ first cause of action for inverse condemnation. This

action will only be pursued if plaintiffs are denied recovery for

their inverse condemnation cause by a final order and after the

time to appeal has expired or during the time the appeal is

pending.

66. “The City's” decision to divert traffic as aforesaid,

without paying to the plaintiffs the just compensation for the

damage is in violation of plaintiffs’ due process rights, equal

protection rights, proportionality rights, and liberty and privacy

rights, contained in both the state and federal Constitutions; both

as applied and on its face.

67. At all times herein mentioned there was in full force

and effect the federal Civil Rights Act of 1871 which permits an

individual to maintain a cause of action against a person acting

under color of state law who violates the individual's

constitutional or other federally protected rights. Except for a

portion of the statute that applies to the District of Columbia, the

full text of 42 USC §1983 reads:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in any action at law, suit in equity, or other

proper proceeding for redress.”

68. That "The City's” acts and omissions giving rise to this

cause of action was as a result of their City Council and its

Planning Commission as herein specifically alleged. The

detailed allegations support the fact that "The City" engaged in

affirmative wrongdoing which resulted in denying the plaintiffs

their rights, privileges or immunities secured by the

Constitution. The City Council is "The City's” final authority

and sets policy, as well as usage and custom. "The City" was

carrying out governmental policy and acting under the "S.M.A."

as well as its subdivision ordinance and accordingly was acting

under color of state law.

69. “The City" failed and neglected to give the plaintiffs a

meaningful notice of the hearing relating to the proceeding to

approve the tentative map. "The City” gave no notice at all for

the hearing relating to the proceeding to approve the final map

and this notwithstanding that the hearing was or should have

been adjudicatory in nature. Facts to support this allegation are

alleged herein and incorporated by reference.

70. That at the hearing by the Planning Commission on

October 3, 1990 generally described hereinabove, the plaintiff

Thomas A. Mass was cut off from speaking in less than half the

time permitted. Upon protest, the chairperson permitted him to

continue for only a few more minutes and summarily refused to

grant him the time permitted, cut the sound from his

microphone and permitted "The City's" and "The Developer's”

employees to answer a few of the charges that he was able to

present. The employees as aforesaid were permitted unlimited

time to present their argument, the plaintiffs were denied the

right to cross-examine them or even reply to them. The full

time provided for under "The City's" rules is grossly inadequate

for a fair trial and even this time was arbitrarily emasculated and

constitutes an abuse of discretion.

71. One of the Commissioners, in rejecting the plaintiffs’

objections, stated in substance as follows: As long as Mr. Mass

believes that "The City" will be subjected to lawsuits for

compensatory damages it is reason enough to rely on "The

City's" employees’ recommendations.

72. The hearing of the City Council on December 18, 1990

which is more fully described elsewhere herein and by reference

incorporated herein, was not a fair predeprivation hearing. The

procedures were designed and applied merely to evoke and

record a public response and did not provide the plaintiffs a fair

and meaningful predeprivation hearing and violated the

plaintiff's property rights as well as their civil rights.

73. That the plaintiffs believe and state the facts to be that

the procedures followed in carrying out "The City's" duty under

state law and pursuant to color of law were not an isolated

incident but were pursuant to long usage and custom and

constitute an unconstitutional municipal policy.

74. The City Council has the final authority and makes the

final decision and sets policy for "The City" and cannot be

reviewed or overruled by anyone in the City government as an

entity. The only review is by judicial review in a writ of

mandate proceeding.

75. The policy and/or custom of "The City” was the cause-

in-fact of plaintiffs being deprived of their constitutional rights

to meaningful notice and a fair hearing. But for the fact that

"The City" failed to provide to the plaintiffs a meaningful notice

or a fair hearing they would not have been damaged.

76. That as a proximate result of The City's" acts and

omissions as aforesaid the plaintiffs were denied a constitutional

meaningful notice and a fair hearing and as a direct result of

such deprivations of their rights the plaintiffs have been denied

the use and enjoyment of their property and a substantial

diminution of the value of their property. The above allegations

are supported by detailed allegations set forth hereinabove.

77. The nature and extent of the plaintiffs’ damages as a

result of being denied their constitutional rights was apparent

and foreseeable to any reasonable person. "The City" should

have been aware of such a common and reasonable chain of

events. Further, "The City" was expressly advised by the

plaintiffs of their potential damages by so advising the Planning

Department, the Planning Commission, and the City Council

prior to their hearings and/or decision.

78. Plaintiffs have incurred and will incur attorneys’,

appraisal, environmental experts and engineering fees because

of this proceeding, in amounts that cannot yet be ascertained,

which are recoverable in their action under the provisions of

Section 1036 of the Code of Civil Procedure.

79. An actual controversy has arisen and now exists

between the plaintiffs and the defendants as to the legal

consequences resulting from the facts that have and will occur as

hereinabove alleged.

80. Plaintiffs desire a judicial determination of their rights

and duties, and a declaration that they may pursue their

remedies for damages.

81. A judicial declaration is necessary and appropriate in

order that the parties may take appropriate steps to mitigate their

damages; and will also serve considerations of judicial economy.

WHEREFORE, plaintiffs pray judgment as follows:

A. Fora writ of mandate directing "The City” to set aside

its decision of January 8, 1991 approving the tentative map, and

its decision of September 3, 1991 approving the final map, as

being non-existent under the law and ab initio null and void

because there has been a prejudicial abuse of discretion and the

denial of a fair hearing pursuant to meaningful notice, and the

proceedings were without, or in excess of, their jurisdiction over

the plaintiffs, because they were not given a meaningful notice

or a fair hearing in the predeprivation proceedings, or in the

alternative;

For a money judgment based upon the difference in value

of the plaintiffs’ property between its fair market value prior to

the acts complained of herein and the fair market value after the

acts complained of herein as well as the loss of the monetary

value that plaintiffs suffered from the loss of their use and

enjoyment of their property.

B. That in the event the Court finds that there was no

deprivation of the plaintiffs’ constitutional rights, but it also

finds that the proceeding leading to "The City's” decision to

approve the final map was "adjudicatory,” then and only then

will plaintiffs seek to challenge the propriety of the decision

pursuant to the traditional remedy provided by the writ of

mandate, and accordingly hereby pray for such relief as well as

such other and further relief as may be deemed necessary and

proper.

C. Declaring the respective rights and duties of the

parties; and declaring that the statutes, ordinances and

proceedings are invalid and void on their face, or as applied to

plaintiffs, or are not applicable to plaintiffs if valid.

D. For such other relief which plaintiffs are entitled to by

the facts alleged in their complaint, whether injunctive, in

declaratory relief or otherwise, as the Court deems most

appropriate.

E. For punitive damages if individual defendants are

joined, in an amount appropriate to punish them for their

wrongful conduct and set an example for others.

F, For reasonable attorney's fees, in addition to any other

relief granted or other costs awarded.

G. For costs of suit herein incurred and for reasonable

litigation expenses.

H. For such other and further relief as the Court may

deem proper.

Dated: August 6, 1992

THOMAS A. MASS

Plaintiff In Pro Per

JANET A. MASS

Plaintiff In Pro Per

DEMAND FOR_ JURY TRIAL

Plaintiffs in the above-entitled action request a trial by jury

as provided by Amendment VII of the United States

Constitution and the laws of California.

VERIFICATION

I, THOMAS A. MASS, am one of the plaintiffs in the above-

entitled action. I have read the foregoing THIRD AMENDED

COMPLAINT FOR PLAINTIFFS' THIRD CAUSE OF ACTION

FOR A WRIT OF MANDATE IN THE ALTERNATIVE, and

know the contents thereof. The same is true of my own

knowledge except as to those matters which are therein alleged

on information and belief, and as to those matters, I believe

them to be true.

I declare under penalty of perjury under the laws of the

State of Califomia that the foregoing is true and correct.

Executed at Carlsbad, California, this 6th day of August,

1992.

THOMAS A. MASS

2851 Torry Court

Carlsbad, CA 92009

Phone: (619) 931-0100

FAX: (619) 438-7850

PROOF OF SERVICE OMITTED IN PRINTING

From the Desk of

THOMAS A. MASS

7 August 1991

The Villages of La Costa

P.O. Box 9000-266

Carlsbad, CA 92009

Attention: Mrs. Bradstreet

Re: Fieldstone Company's Fairways Project

Dear Neighbor:

I have been meaning to go on record with you as to my

objections to your project, The Fairways. This a.m. at 4:30

your grading contractor started unloading its heavy duty

equipment and it sounded like “operation Fairway storm." This

"serenade" under our bedroom window provided me with the

motivation to get this letter off without delay.

As you know, Courte de La Vista "T's" into Alicante Road,

and this exit is blind to traffic coming up the hill. Because of

the tenforld increase in traffic, it's reasonable to expect an

accident and all the tragic things that will result. Therefore, I

urge you not to plac eyour entrance on Courte de La Vista, but

rather, on Alicante Road.

The entrance of Courte de La Vista also adversely affects the

residential nature of the street we front on; we can expect Noise,

fumes, flashing headlights in our homes, etc., which were

designed to capitalize on the tranquil view and fresh air. You

have made a residential low use road into a high traffic artery.

EXHIBIT A

You have shown no sensitivity for the safety or aesthetics of

our community. In mitigation, you should minimize these

assaults on our environment by such steps as" low one-story

homes at the high entryway; install glass walls on the homes that

front on Courte de La Vista between Alicante Road and the

entryway; speed and quiet zone signs; and appropriate

landscaping.

Your future conduct will show your intentions.

Very truly yours,

THOMAS A. MASS

TAM/ds

NOTICE OF PUBLIC HEARING

CT 20-23/PUD 90-23/HDP 90-29

NOTICE IS HEREBY GIVEN that the City Council of the City

of Carlsbad will hold a public hearing at the City Council

Chambers, 1200 Carlsbad Village Drive (formerly Elm Avenue),

Carlsbad, California, at 6:00 P.M., on Tuesday, December 18,

1990, to consider an application for a tentative map, planned

unit development and hillside development permit for 132

single family detached homes on 41.09 acres of land in the

RDM zone and Local Facilities Mnagement Zone 6 on property

generally located south of Corte de la Vista, east of Alicante

Road and north of the La Costa Gold Course and more

particularly described as:

Parcel 2 of Parcel Map No. 11722, in the City of

Carlsbad, County of San Diego, according to map

thereof filed in e office of the County Recorder of

San Diego County on October 10, 1981 as file no.

81-322184 of Official Records.

If you have any questions regarding this matter, please call the

Planning Department at 438-1161.

If you challenge the Tentative Tract Map/Planned Unit

Development/Hillside Development Permit in court, you may be

limited to raising only those issues you or someone else raised at

the public hearing described in this notice or in written

correspondence delivered to the City of Carlsbad City Clerk's

Office at or prior to the public hearing.

APPLICANT: Fieldstone Company

PUBLISH: December 6, 1990

CARLSBAD CITY COUNCIL

MAP OMITTED IN PRINTING

EXHIBIT C

DECEMBER 18, 1990

NOTICE TO THE PUBLIC

1. Citizens may have an item listed on the agenda by

sumbitting a letter to the City Manager ten (10) days

prior to the meeting.

2. It is Council's policy to adjourn mectings no later than

10:00 P.M.

3. Meetings are divided into categories shown below.

4. When you are called to speak, please come forward and state

your name and address.

CONSENT CALENDAR: If you desire to talk about an item

on the Consent Calendar, a written "Request to Speak" form

must be filed with the City Clerk prior to the time the Consent

Calendar is called. The items listed under Consent Calendar are

considered routine and will be enacted by one motion as listed.

There will be no separate discussion on these items prior to the

bote, unless an item is removed.

PUBLIC COMMENT: If you desire to speak about an item not

listed on the agenda, a pink "Time Reservation Request" form

should be filed with the City Clerk. A total of 15 minutes is

provided for the Public Comment portion of the Agenda.

Speakers are limited to three (3) minutes each.

EXHIBIT D

In conformance with the Brown Act, no action can occur on

items presented during Public Comment.

PUBLIC HEARINGS: It is not necessary to file a request to

speak on items listed on this agend as Public Hearings.

ALL OTHER CATEGORIES: For all other agenda items a

"Request to Speak" form must be filed with the City Clerk

before the item is announced. There is a five (S) minute time

limit for individual speakers.

MINUTES

Meeting of: PLANNING COMMISSION

Time of Meeting: 6:00 p.m.

Date of Meeting: October 3, 1990

Place of Meeting: City Council Chambers

MINUTES OMITTED IN PRINTING, EXCEPT PAGE 2,

PARAGRAPH 3:

"The project is proposed as a gated community.

The gate design is single access off Corte de la Vista

and it provides a turnaround area at the entrance.

The location of the single access was dictated by

staff. The original proposal came in with an access

off Alicante Road; however, for traffic safety

purposes, staff requested that the entrance be moved

to Corte de la Vista."

EXHIBIT E

hh——~ituei—s a

FILED

Clerk of the Superior Court

Aug 31 1992

Vista Branch

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR

THE COUNTY OF SAN DIEGO

THOMAS A. MASS and JANET A. MASS, Plaintiffs

CITY OF CARLSBAD, a Municipal Corporation;

FIELDSTONE/LA COSTA ASSOCIATES LIMITED

PARTNERSHIP, a California Limited Partnership, Defendants

Case No. N53303

AMENDED AND SUPPLEMENTAL COMPLAINT FOR

PLAINTIFFS' CAUSE OF ACTIONS BASED ON THE

DEPRIVATION OF THEIR RIGHTS SECURED BY THE

UNITED STATES CONSTITUTION, REQUESTING

MONEY DAMAGES, DECLARATORY RELIEF AND

EQUITABLE RELIEF INCLUDIGN AN INJUNCTION.

[42 U.S.C. §§1983, 1985, 1986, 1988]

This Amended and Supplemental Complaint is being filed

pursuant to §472 of the Code of Civil Procedure of the State of

California. The Court in its telephonic temporary ruling on July

27, 1992 sustained defendants' demurrer to plaintiffs’ second

amended complaint in its entirety. Plaintiffs were not given

leave to amend their first or second causes of action but the

Court did grant to the plaintiffs leave to amend their third cause

of action. On August 6, 1992 plaintiffs filed their Third

Amended Complaint as to their third cause of action.

FOURTH CAUSE OF ACTION

Deprivation of Rights Under Color of State Law

[42 U.S.C. §§1983, 1985, 1986, 1988]

(Plaintiffs vs. "The City" Defendants)

82. Plaintiffs incorporate paragraphs 1 through 81 both

inclusive of their third cause of action in their third amended

complaint as though fully set out here, including the exhibits

thereto attached.

83. As herein stated, this action is based on the deprivation

of plaintiffs’ rights under color of state law brought pursuant to

the Civil Rights Act of 1871, Title 42 United States Code

§§1983, 1985, 1986, 1988 (1988 Civil Rights Act), for remedies

that the court may seem just, for "The City's" deprivation of

plaintiffs’ civil and property rights.

84. Plaintiffs allege that by virtue of their acts and

omissions hereinabove set out in detail, "The City,” under color

of state law, deprived the plaintiffs of their guaranteed and

protected rights under the Fifth Amendment of the United States

Constitution by taking their property for public use without just

compensation.

85. That by virtue of the negligent acts and omissions of

"The Developer” as herein specifically alleged, during the

grading and utilities placement work on the "Fairways Project"

which has been in continuous operation for over thirteen

months, the pollution caused by the negligent manner in which

the site preparation was performed resulted in the plaintiffs

losing the value of the use and enjoyment of their property (see

plaintiffs’ Exhibit F).

86. That at all times during the site preparation phase of

construction, "The Developer," who was subject to the direction

and approval of "The City," performed their construction in a

manner which was negligent as aforesaid, and "The City” had

full power and authority to stop the job if not performed in

accordance with the plan or performed in a negligent manner.

"The City's” failure to exercise its authority, as under the

circumstances it was under a duty to do, was an abuse of

governmental powers resulting in permanent loss to the

plaintiffs of their protected property rights as aforesaid.

87. The plaintiffs’ property rights to the free use and

enjoyment of their property and their right to exclude has been

violated by “The City's" acts and omissions as aforesaid. This

abuse of power and deliberate indifference to the damages the

plaintiffs were sustaining is a deprivation of plaintiffs’

constitutional rights as aforesaid, and is particularly egregious in

light of the fact that "The City" knew the nature and extent of

the injuries that were occurring to plaintiffs.

88. The special relationship that exists between "The City"

and the citizens in general and particularly the plaintiffs who

had given actual notice to "The City” of their claim, places an

additional duty on "The City,” which they breached, resulting in

the deprivation as aforesaid.

89. This failure of "The City” to discharge its duty was an

abuse of governmeatal powers, would shock the conscience of

an ordinary person, and thus constitutes an unlawful taking,

denial of equal protection, and procedural denial of due

process. “The City" has a constitutional duty to protect the

plaintiffs from such a calamitous result and deprivation as

aforesaid.

90. That upon completion of the "Fairways Project," which

can reasonably be expected to take two or more years from the

completion of its site preparation which is still in progress, and

based on "The City's" Interim Traffic Impact Fee for

Southeastern Area (La Costa) Ordinance, 18.42.000 et seq, the

“Fairways Project" alone will result in generating over 1,300

“trips” each weekday.

91. The Court will take judicial notice that there are 1,440

minutes in each one day period; and that one motor vehicle

every minute entering and exiting a gate which is directly across

the street from plaintiffs' home, together with braking and

accelerating, will cause air and noise pollution to the plaintiffs

and their property.

92. That as a direct and proximate cause of the dust, dirt,

debris, noxious odors, flashing lights at night and street noise,

the plaintiffs have been and will continue to be peculiarly and

substantially damaged.

93. That the location of the access to the "Fairways

Project" across the street from the plaintiffs’ homes has caused a

destruction of their valuable property rights and rendered their

property untenantable. The unique property rights formerly

enjoyed by the plaintiffs was the essence of the reason they

purchased the property and paid a premium for its location and

view.

94. The view is still there but cannot be enjoyed because

of the dirt, noise and air pollution, as aforesaid.

95. The essence of the actionable air pollution

hereinabove described is that it damages, if not-destroys, the

plaintiffs’ personal enjoyment of their terrace. It also has the

effect of lessening the value of the property and may affect the

health of the plaintiffs. It also requires that doors and windows

be kept closed at all times, and will thereby force the plaintiffs to

install air conditioning which they cannot tolerate.

96. "The City" allowed "The Developer" to continue

emission of fugitive dust from its operation and use of unpaved

_ roads, open storage files, demolition and disturbed surface area,

so that the presence of such dust remains visible in the

atmosphere above the plaintiffs’ property and deposits large

amounts of visible, particulate matter on the plaintiffs and their

property, and that has continued for over a year.

97. That upon completion of construction we can

reasonably expect that the "Fairways Project" will generate one

motor vehicle every minute every day and night. This

extraordinary and unexpected volume in traffic will all be

focused across the street from the plaintiffs’ home and will result

in the air pollution hereinabove described and increase the

ozone, exhaust contaminants, carbon monoxide and fine

particles that will be injurious to plaintiffs and their property as

herein more fully alleged, all as a direct and proximate result of

"The City's" abuse of its governmental power as aforesaid.

98. That as a direct and proximate result of "The City's"-

aforesaid acts and omissions all done under color of state law,

the plaintiffs were deprived of their civil rights and property

rights under the Constitution and in violation of the Federal

Civil Rights Act inasmuch as their property was taken for public

use and without just compensation.

99. But for "The City's" decision to divert the traffic from

Alicante Road to the one point of access to the "Fairways

Project" on Corte de la Vista, the permanent taking of plaintiffs

property would not have occurred. "The City's" decision is in

excess of its authority and flawed in its execution; thus null and

void and should be set aside. (Vehicle Code §21 et seq.)

100. If the court required that the gate be relocated to its

original location and the Corte de la Vista access be shut down,

plaintiffs' compensatory damages would be limited to the taking

resulting from the manner in which construction has been

performed to date.

101. That on July 27, 1992, the court entered its tentative

telephonic ruling which provided in part the following:

“DEFENDANTS' DEMURRER TO

PLAINTIFFS' SECOND AMENDED COMPLAINT

SUSTAINED IN ITS ENTIRETY, PER CCP

SECTION 430.10.

1. PLAINTIFFS' FIRST CAUSE OF ACTION,

FOR INVERSE CONDEMNATION, IS DEFICIENT

IN THAT PLAINTIFFS HAVE FAILED TO

PLEAD FACTS SHOWING THE LOSS OF THE

PRIMARY USE AND VALUE OF THEIR

PROPERTY. A TEMPORARY INJURY

RESULTING FROM ACTUAL CONSTRUCTION

OF PUBLIC IMPROVEMENTS IS GENERALLY

NONCOMPENSABLE.

i (1960) 54 Cal.2d 217,

228. PLAINTIFFS HAVE FAILED TO PLEAD

FACTS GIVING RISE TO A CLAIM FOR

INVERSE CONDEMNATION.

FURTHERMORE, PLAINTIFFS' CHALLENGE

TO THE VALIDITY OF THE RELEVANT

TENTATIVE AND FINAL MAPS IS BARRED BY

THE 90 DAY LIMITATION PERIOD SET FORTH

IN GOVT. CODE 66499.37.

THE DEMURRER TO THE FIRST CAUSE OF

ACTION IS SUSTAINED WITHOUT LEAVE TO

AMEND."

102. That the law of this case, albeit improvident, is such

that plaintiffs as of August 7, 1992, the day the court confirmed

its tentative ruling, do not have an adequate state court remedy

for a post deprivation hearing or an action for inverse

condemnation, to provide them compensation for Fifth

Amendment taking. That plaintiffs’ federal civil rights claim

first became ripe on August 7, 1992, and is not barred by any

State immunities or claims-presentation requirements.

103. That the allegations herein support the fact that "The

Developer" was under a license by "The City" approving the

subdivision map and granting the necessary permits to develop

the "Fairways Project" pursuant to an extensive system of

governmental regulations based upon state laws and "The City's

ordinances, policy and custom.

104. That "The Developer" in developing the site operated

under the color of law because of the close nexus with "The

City," and further, because the nature of the functions

performed by them are functions that are traditionally

performed by governments. "The Developer” installed the

utilities, including water, storm sewers, sanitary sewers, gas and

electricity. They also constructed retaining walls, roads and

access facilities, all in accordance with plans and specifications

approved by "The City" and supervised by them.

105. “The City's” liability is not being based upon plaintiffs’

allegations that they caused "The Developer" to perform in the

manner it did, but upon its failure to prevent the alleged

infringement of federal rights that were fairly attributable to

them.

106. That "The City's” acts and omissions of authorizing,

compelling, or sanctioning the manner in which "The

_———

Developer" performed the site preparation were the direct and

proximate cause of the deprivation of plaintiffs’ rights as

aforesaid.

107. That the plaintiffs, based upon information and belief,

State that there exists between the defendants written agreements,

among which there exists an indemnification agreement wherein

"The City" has insulated itself from the wrongful acts and

omissions of "The Developer." That the plaintiffs further

believe and so state the facts that notwithstanding the existence

of an indemnity agreement or not the defendants are liable

jointly and severally to the plaintiffs. That §1985 of said Civil

Rights Act provides in part as follows:

"Conspiracy to interfere with Civil rights.

“Obstructing justice; intimidating party, . . . q(2)

. . . if two or more persons conspire for the purpose

of impeding, hindering, obstructing, or defeating, in

any manner, the due course of justice in any State or

Territory, with intent to deny to any citizen the equal

protection of the laws, or to injure him or his

property for lawfully enforcing, or attempting to

enforce, the right of any person, or class of persons,

to the equal protection of the laws;

“Depriving persons of rights or privileges. 4(3) If

two of more persons in any State . . . conspire . . .

for the purpese of depriving, either directly or

indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges

and immunities under the laws, . . . in any case of

conspiracy set forth in this section, if one or more

persons engaged therein do, or cause to be done,

any act in furtherance of the object of such

conspiracy, whereby another is injured in his person

or property, or deprived of having and exercising

any right or privilege of a citizen of the United

States, the party so injured or deprived may have an

action for the recovery of damages occasioned by

such injury or deprivation, against any one or more

of the conspirators.

108. That §1986 of said Civil Rights Act provides in part as

\follows:

"Action for neglect to prevent. ¢ Every person who,

having knowledge that any of the wrongs conspired

to be done, and mentioned in section 1985 of this

title, are about to be committed, and having power to

prevent or aid in preventing the commission of the

same, neglects or refuses so to do, if such wrongful

act be committed, shall be liable to the party injured,

or his legal representatives, for all damages caused

by such wrongful act, which such person by

reasonable diligence could have prevented; . . .

109. That plaintiffs are informed and believe and further

based on the conduct of "The City" and "The Developer” herein

alleged in detail and thereon allege that these defendants have

obstructed justice and intimidated the plaintiffs with intent to

deny them their rights, privileges and immunities, as herein

alleged, of their property, and from lawfully enforcing or

attempting to enforce said rights.

110. That plaintiffs are informed and believe and further

based on the conduct of "The City" and "The Developer” herein

alleged in detail and thereon allege that these defendants have

obstructed and continue to deprive the plaintiffs of their rights

as aforesaid by conspiring for the purpose of depriving them of

their constitutional rights and the Civil Rights Act, and have

taken their property and denied them substantive and

procedural due process as well as equal protection, to their

substantial and significant damages as herein alleged.

111. That plaintiffs are informed and believe and further

based on the conduct of "The City" and "The Developer" herein

alleged in detail and thereon allege that these defendants have

obstructed, also, by virtue of their conduct in this case by their

pleadings and their memorandums of points and authorities,

demonstrated their obstruction of justice and intimidation of the

plaintiffs as aforesaid, and that said conduct implicitly

establishes the essential elements of a cause of action based on

§§1875 and 1986 of the federal Civil Rights Act.

112. That the defendants and each of them made explicit

what was implicit when their attomey on August 7, 1992, after

leaving the courtroom and in the corridors of the courthouse on

the way to the exit stated to plaintiff that if he continued to file

actions based on the facts contained in plaintiffs’ First and

Second causes of action he would seek sanctions against them.

113. That the threat thus made was in anger and made with

the intent to intimidate these plaintiffs and continued a course of

conduct that has deprived these plaintiffs of their constitutional

rights as alleged and with full knowledge of the wrongs

conspired to be done under the United States Constitution and

the Civil Rights Act.

114. That all of the wrongful acts of these defendants were

such that they and each of them knew that such acts could have

been prevented by their reasonable diligence, and were

expressly communicated by plaintiff to them years ago but they

have and continue to act to prevent the perpetration of said

wrongful acts.

115. That because of the age and lifestyle of these plaintiffs

injunctive relief is the only meaningful remedy because money

damages are inadequate and would only increase their net worth

which would benefit their heirs but not them. Not only do the

plaintiffs need injunctive relief, they need it now before the case

drags out to exceed their life expectancy.

116. "The City" acting under color of law has deprived

plaintiffs a property interest protected by the Fifth Amendment

and by Section 1 of the Fourteenth Amendment of the United

States Constitution as herein alleged in particularity.

117. "The City” acting under color of law deprived

plaintiffs of their procedural and substantive due process

protected by Section 1 of the Fourteenth Amendment of the

United States Constitution as herein alleged in particularity.

118. "The City" acting under color of law has deprived

plaintiffs of their right to equal protection of the law protected

by Section 1 of the United States Constitution inasmuch as its

ordinance relating to time limits for judicial review provides in

substance in Section 1.16.010 that employees and applicants for

a license shall be given written notice of any decision made as a

result of an adjudicatory administrative hearing and the time

within which judicial review must be sought. The Court is

requested to take judicial notice of this ordinance. That the

plaintiffs as contiguous property owners were invited to a

hearing designed and applied merely to evoke and record a

public response. The plaintiffs had no notice or any knowledge

that this was a predeprivation proceeding where they are bound

by the decision, and without a fair hearing, and without any

notice of their rights to judicial review, as herein more fully

alleged.

119. That plaintiffs as contiguous property owners entitled

to notice of an application relating to a proposed subdivision

have substantial and significant protected property interests and

they were not given the equal protection of others with less at

risk; in fact they not only were not given any protection, they

were fraudulently misled and deceived by what was done and

perfected by a conspiracy of silence, all of which is herein

alleged in particularity.

120. The plaintiffs in anticipation of the defendants’

defense of a bar to their cause of action based upon the federal

Civil Rights Act, set forth facts that are in avoidance, to wit: the

determination of the applicable statute of limitations rests upon

the nature of plaintiffs’ rights as herein alleged, e.g., the three

year statute in connection with an action created by statute, or

for trespass to real property, or an action to recover for physical

damages to private property under §19 of Article I of the

California Constitution.

121. The plaintiffs, based upon information and belief, state

that their cause of action based upon the federal Civil Rights Act

was not an available remedy and no suit could be maintained

upon it until it accrued, which did not happen until the 27th day

of July 1992,

122. That the plaintiffs, based upon information and belief,

State that from any other prior date until said July 27, 1992, they

were under a legal inhibition to sue because their cause of action

was not ripe and thus under a constructive Stay until their cause

became ripe, to wit: July 27, 1992.

123. The defendants first had notice of plaintiffs’ objections

to "The City's" traffic diversion plan as herein alleged in late

spring and early summer of 1990; again and orally before "The

City's" Planning Commission on October 3, 1990; and before

"The City's" City Council on December 18, 1990. The first

formal written notice was given to these defendants on

September 26, 1991, by delivery to them of a first draft of a

complaint against both of them by the plaintiffs for a writ of

mandate, inverse condemnation, nuisance, negligence, and

violation of constitutional rights growing out of the "S.M.A."

and "The City's" subdivision ordinance relating to the

misleading notice and unfair hearing.

124. That the plaintiffs’ cause of action based upon the

Civil Rights Act as aforesaid rests basically on the same facts as

alleged in their prior notice, objections and complaints, and the

defendants have not been prejudiced in gathering evidence to

defend against this claim or in any other way.

125. That the plaintiffs could not have pursued this cause

of action any earlier then they did and the record in this cause

Supports plaintiffs’ statement that they acted reasonably and in

good faith in filing this new cause of action promptly upon

becoming ripe.

126. That the plaintiffs, based upon information and belief,

allege that §66499.37 of the Government Code has no

application to any cause of action based on a request for money

damages to non-parties nor in privity with the parties, and the

decision was made pursuant to unconstitutional notice and

hearings, and based upon the factual allegations hereinabove

stated, said §66499.37 cannot be a bar to these plaintiffs.

127. That the plaintiffs, based upon information and belief,

state as to all other causes of action alleged in this, their “Fourth

Cause of Action" upon which their civil rights cause of action

rests upon, that they have good and valid facts

to support the avoidance of a defense based on the statute of

limitations.

128. That the plaintiffs, based upon information and belief,

state that the factual statements herein alleged support the fact

that the defendants and each of them concealed material facts

by neglecting to notify these plaintiffs that the decision

approving the tentative map was a final order and that unless

plaintiffs sought judicial review of that decision they would be

deprived of their property. Further, they neglected to notify

these plaintiffs that the time within which to seek judicial review

was only ninety days and what the results of failing to file within

the statutory time limit would be.

129. The plaintiffs allege that the defendants and each of

them knew that by virtue of the plaintiffs’ objections and their

tenacity that they intended to pursue this matter by exhausting

all legal remedies available. That the defendants and each of

them knew or should have known that plaintiffs were relying on

defendants to be notified as to the requirements to perfect their

pursuit. That neither of the defendants at any time notified the

plaintiffs that the decision approving the tentative map was a

final order or that there would be no further hearing in

connection with the final approval of the map until after

plaintiffs found out with due diligence.

130. That both of the defendants were aware of the rules,

knew of the plaintiffs’ interest in pursuing their rights, and knew

that plaintiffs were relying on them to be notified as aforesaid

and failed and neglected to properly notify plaintiffs. That

based upon the facts and circumstances as herein alleged these

defendants and each of them had an affirmative duty to disclose

to plaintiffs their rights and requirements, that these were

material facts, and their failure to so disclose was a fraudulent

concealment, which plaintiffs relied upon and to their detriment.

131. That the relationship between the plaintiffs and "The

City" was not deemed adversarial and the plaintiffs believed that

as Citizens, their government, particularly local government, was

there to serve and protect their rights. "The City” by their

ostensible conduct led plaintiffs to believe that they would

protect their rights.

132. That the relationship between the plaintiffs and "The

Developer" was deemed by the plaintiffs to be one of a

prospective good neighbor. "The Developer" by letters and

advertisements and public relations, as well as by the numerous

occasions the plaintiffs have interfaced with them, make every

effort to create the image of the "good neighbor” and to be of

service to the community.

133. That the plaintiffs, based upon their justified

perception of the defendants, trusted in them and in good faith

relied on them because of the aforesaid special relationship

which was tantamount to a fiduciary relationship.

134. That the plaintiffs allege that because of the above

allegations they did not perceive that they were in imminent

danger of being damaged and prejudiced and being denied

their constitutional rights and the loss of valuable protected

property rights. That the plaintiffs did not discover, nor under

the circumstances hereinabove alleged could they have

discovered through the exercise of reasonable diligence, until

the middle of September 1991 did they discover the true state of

the facts.

135. That the plaintiffs allege that it would be manifestly

unjust to deprive the plaintiffs of a cause of action before the

plaintiffs were aware that they had been damaged based upon

the facts alleged herein.

136. That the plaintiffs further allege that because the

defendants are guilty of continuing violations and further

because the causes of action herein alleged show that the actions

are based on progressively developing and continuing wrongs,

and the nature and extent and the permanence of the harm is at

this time difficult to determine and/or discover, the running of

the period of limitations should, in the interest of justice, should

be suspended until discovery of, or the opportunity to discover

the facts.

137. That the plaintiffs allege that it would be inequitable

and unjust to permit the defendants and each of them from

raising 2 bar to plaintiffs' claims based upon limitations. That

based upon the allegations herein, the defendants neglected to

furnish a meaningful notice to plaintiffs and lulled them into a

false sense of security. That the defendants knew of the statute

of limitations and further knew that they lulled plaintiffs into

sleep, and that plaintiffs in reliance on their conduct were

ignorant of the limitations and were damaged thereby, all as

hereinabove alleged.

138. That the egregious conduct of "The City” in the

misleading notice that they did give the plaintiffs of the sham

hearings had in this matter should bar them from raising the

defense of limitations. That based upon the facts herein alleged

and upon considerations of fairness and justice, "The City”

should be prevented from raising the defense of the statute of

limitations contained in Government Code §66499.37.

139. That by virtue of the acts and omissions of "The City"

as herein described and "The Developer” as hereinafter

described, these defendants conspired and attempted to hinder,

impede, obstruct or defeat the due course of justice with intent

to injure plaintiffs and to deny them their rights under the

United States Constitution as aforesaid and within the meaning

of 42 U.S.C. §§1983, 1985(2) and (3) and 1986.

140. That the limitations period of ninety days contained

in §66499.37 of the Government Code, as used in connection

with the "S.M.A." is unconstitutional on its face as well as upon

the facts alleged in this complaint, as applied to plaintiffs. It is a

trap, to invite contiguous property owners into a hearing which

is designed and applied merely to evoke and record a public

response. It is manifestly inequitable as to amount to a total

denial of justice and is unconstitutional. Without any notice that

it is to be a predeprivation of property proceeding, and further,

not to be given any notice of the decision or the fact that you

must seek judicial review within ninety days of the decision or

you will be denied a remedy is so shocking as to stun a person

of average sensitivity.

WHEREFORE, plaintiffs request judgment as follows against

"The City":

A. For a money judgment based upon the difference in

value of the plaintiffs’ property between its fair market value

prior to the "taking" by the acts herein complained about, and

the fair market value after the "taking" as aforesaid;

B. For a money judgment based on the value of the loss

of plaintiffs’ use and enjoyment of their property for the period

involved;

C. For a money judgment for the interest on the

judgment entered commencing when plaintiffs notified "The

City” of the nature and extent of their claim;

D. For a money judgment for general damages in an

amount according to proof;

E. For injunctive relief based upon the Court's discretion

and upon the complaint generally and as specified in

paragraphs 99 and 100;

F. For reasonable attorney's fees pursuant to Title 42 of

the United States Code, Section 1988. Sections 1988(b)

provides in part as follows:

"Attomey's Fees. {In any action or proceeding to

enforce a provision of sections . . . of the Civil

Rights Act of 1964, the court, in its discretion, may

allow the prevailing party, . . . a reasonable

attorney's fee as part of the costs."

G. For reasonable appraisal, engineering and other expert

fees according to proof and §1988(c) which provides in words

and figures as follows:

“Expert Fees. {In awarding an attorney's fee under

subsection (b) of this section in any action or

proceeding to enforce a provision of section 1981

or 1981a of this title, the court, in its discretion, may

include expert fees as part of the attorney's fee.”

H. For costs of suit herein incurred; and

I. For such other and further relief as the Court deems

proper.

DEMAND FOR JURY TRIAL AND VIEW

PLAINTIFFS REQUEST TRIAL BY JURY AND THAT THE

JURY BE PERMITTED TO VIEW THE "FAIRWAYS

PROJECT" AND THE PLAINTIFFS' PREMISES.

EIFTH CAUSE OF ACTION

Deprivation of Rights Under Color of State Law

[42 U.S.C. §§1983, 1985, 1986 and 1988)

(Plaintiffs vs. "The Developer")

141. Plaintiff incorporates paragraphs 82 through 140 of

their Fourth Cause of Action in their Amended and

Supplemental Complaint as though fully set out here including

the exhibits attached thereto.

142. The above referred to order and ruling of July 27,

1992 and confirmed on August 7, 1992, also provided in part as

follows:

"2. PLAINTIFFS' SECOND CAUSE OF

ACTION IS DEFICIENT IN THAT THE

ALLEGEDLY WRONGFUL ACTS WERE

ADMITTEDLY UNDERTAKEN WITH

EXPRESS PUBLIC APPROVAL. A

NUISANCE CLAIM MAY NOT BE BROUGHT

FOR ACTIONS DONE OR MAINTAINED

UNDER THE EXPRESS AUTHORITY OF A

STATUTE, PER CIVIL CODE §3492.

THE DEMURRER TO THE SECOND CAUSE

OF ACTION IS SUSTAINED WITHOUT

LEAVE TO AMEND."

143. As hereinabove alleged in detail this is an action for

the deprivation of plaintiffs constitutional rights under color of

law brought pursuant to the federal Civil Rights Act. "The

Developer,” a private entity, deprived the plaintiffs of their

protected rights of being free from the governmental taking of

their property without just compensation, and being denied

procedural and substantive due process as well as equal

protection under the law as herein more fully detailed.

144. Fieldstone/La Costa Associates Limited Partnership, a

California Limited Partnership ("The Developer”) is the largest

single land owner of residential real estate in the La Costa area

of the City of Carlsbad. It is, and has been for a number of

years, actively engaged in planning and constructing new

residential communities and holds itself out and does business

under the assumed name of “Fieldstone of La Costa.”

145. "The Developer” has a large staff and retains outside

consultants and contractors to plan and develop its new

subdivisions. "The Developer” has been working with "The City”

for five years or more on its "Fairways Project.”

146. The plaintiffs allege that in "The Developer's” original

plan for the "Fairways Project” submitted to both the planning

department and the planning commission of "The City,” located

the access to said project on Alicante Road.

147. That the plaintiffs, prior to purchasing their home,

investigated the proposed development below and adjacent to

their property and were satisfied as to the proposed density,

height and style of the homes to be built, and also relied on the

location of the gate which was to be on Alicante Road. At that

time, plaintiffs had no reason to believe that the gate to the

development would be relocated across the street from them and

would result in the nuisance, trespass and air pollution caused by

the increased volume of traffic to their home. Plaintiffs were the

first purchasers and selected their location over the other

thirty-seven that were available in their development.

148. The plaintiffs were justifiable in their reliance on these

facts, as well as the residential character of the road that they

would be contiguous to and had a vested property right in them,

never expecting "The City" to divert the heavy traffic of Alicante

Road to Corte de la Vista and to relocate the gate to the project

across the street from their home, or "The Developer" to concur

and/or conspire in that decision.

149. The first notice that the plaintiffs had that the access

may be located on Corte de la Vista (across the street from

plaintiffs’ homes) was on or about the 10th day of May, 1990, at

"The Developer's" local office in La Costa.

150. The plaintiffs promptly made their objections to the

location of access to the "Fairways Project" to "The Developer;"

to "The City's” Planning Department and Planning Commission;

as well as to the City Council and was met by indifference and

refusal to lessen, mitigate or modify, or change their decision.

151. "The Developer" never made any public objection to

"The City's” decision to relocate the access of the "Fairways

Project." "The Developer" also failed to exhaust its

administrative remedies or seek judicial review of "The City's"

decision. "The Developer" knew or should have known that the

relocating of the only gate to the "Fairways Project" to Corte de

la Vista would result in damages to the property of others, and

result in a nuisance, trespass and air pollution, but breached its

duty to plaintiffs by failing to take any action to prevent or

mitigate that result.

152. Commencing in August of 1991, "The Developer,”

with "The City's" full authorization, direction and approval,

commenced construction of "The Fairways Project" in a manner

which constitutes an unconstitutional taking and a deprivation of

plaintiffs’ constitutional rights. Noise, noxious odors and dirt in

the form of dust are blown onto plaintiffs' property by

prevailing winds by "The Developer's” failure and refusal to take

all necessary and reasonable precautions to prevent, reduce, or

mitigate the emissions as aforesaid.

153. The aforementioned occupation, use, and maintenance

of the "Fairways Project" was the result of the negligent manner

in which "The Developer" performed the construction, and

created a nuisance, and is the cause in fact of its damages. Such

occupation substantially and unreasonably interferes with the

comfortable use and enjoyment of plaintiffs’ Property, and may

well be harmful to plaintiffs’ health and is the proximate cause

of the unconstitutional taking of their property.

154. On or about August 7, 1991, the plaintiff gave written

notice to the "The Developer" of the injury the plaintiffs have

experienced and expect to experience in the future (see

plaintiffs’ Exhibit "A"). Plaintiff requested "The Developer" to

abate such unreasonable activity, but they have refused and

continue to refuse to abate their activities as aforesaid to this

date and at all hours of the day and night and in violation of

"The City's” ordinance.

155. As a result of "The Developer's" acts and omissions as

aforesaid, plaintiffs have been, and will be damaged by: (a)

being denied the full use and enjoyment of their property; (b)

the cost and or personal labor in cleaning the walks, furniture,

windows and other appurtenances on a daily basis; (c) the value

of the property has and will continue to decline unless this

activity is abated; (d) and may be hazardous to the plaintiffs’

health. As a direct and proximate result of said acts and

omissions the plaintiffs have been denied their constitutionally

protected rights as aforesaid.

156. That as a result of the acts of commission and

omission as aforesaid, "The Developer” and "The City” are

acting with full knowledge of the damages being caused to

plaintiffs. Defendants’ conduct is willful, oppressive and

malicious. Accordingly, plaintiffs are entitled to punitive

damages against "The Developer.”

157. The above described dust, dirt, odors and noise have

persisted and continue to persist. Plaintiffs have been denied the

valuable use and enjoyment of their terrace and have been

forced to keep their doors and windows Closed. The focal point

and value of plaintiffs’ property is the terrace (for the view and

the prevailing winds from the ocean), all aspects of which have

been destroyed or substantially reduced; they are the primary

reason for the value of the property and the exclusive reason

why plaintiff purchased the Property at a premium and spent an

additional amount in excess of $50,000.00 to enhance the

outdoor terrace (see Group Exhibit "B”).

158. The activities above described interfere with plaintiffs’

possession of their property and have substantially diminished

the value of their property and constitute a deprivation of their

constitutional rights as aforesaid. Unless "The Developer” abates

such conduct, the plaintiffs will be denied the full use and

enjoyment of their property during the site preparation, which

has continued over a year, and the construction, which will take

several more years.

159. The vibrations, fumes and noise are offensive to the

senses and deny plaintiffs the free use and enjoyment of their

property. Such interference with plaintiffs’ comfortable

enjoyment of life and property has resulted in the substantial

reduction in the market value of their property.

160. The activities above described are "continuing" and

will presumably come to an end. However the activities that can

be expected to start when construction is complete and the 132

homes are occupied will be "continuing and permanent”

resulting in the permanent taking of their property as aforesaid.

161. That as a direct result of the dust, dirt, debris, noxious

odors, flashing lights at night and street noise, the plaintiffs have

been and will continue to be peculiarly and substantially

damaged.

162. That the diversion of traffic to the access of the

"Fairways Project” across the street from the plaintiffs’ homes

has caused a destruction of the valuable property rights and

rendered their property untenantable. The unique property

rights formerly enjoyed by the plaintiffs was the essence of the

reason they purchased the property and paid a premium for its

location and view.

163. The view is still there but cannot be enjoyed because

of the dirt, noise and air pollution, as aforesaid.

164. The essence of the acts and omissions of the "The

Developer” hereinabove described is that it damages, if not

destroys, the plaintiffs’ personal enjoyment of their terrace. It

also has the effect of lessening the value of the property and

may affect the health of the plaintiffs. It also requires that doors

and windows be kept closed at all times, and thereby will be

forcing the plaintiffs to install air conditioning which they

cannot tolerate.

165. Upon completion of the "Fairways Project,” "The

Developer” or its successors-in-title will cause continued air

pollution, increasing the amount of ozone, exhaust

contaminants, carbon monoxide, and fine particles that will be

injurious to plaintiffs and their property as herein more fully

alleged all as a direct result of their acts and Omissions as

aforesaid.

166. As a result of "The Developer's" acts and omissions as

aforesaid the value of plaintiffs’ real property has been

diminished by not less than $100,000.00, and further, they have

been denied the full use and enjoyment of their property, and

unless abated plaintiffs’ property will progressively diminish in

value.

167. The exact damages that have been and will continue to

be inflicted on the plaintiffs cannot at this time be determined,

but will include loss of value, loss of use, clean-up expenses,

repairs, and possible personal injuries. As a result of such

injuries, plaintiffs have suffered general damages in an amount

according to proof.

168. "The Developer" and "The City” are acting with full

knowledge of the consequences and damages being caused to

the plaintiffs, and their conduct is willful, oppressive, and

malicious. Accordingly, plaintiffs are entitled to punitive

damages against "The Developer" ina sum to be determined by

the jury.

169. “The Developer” has failed to minimize the pollution

caused by their site preparation, and further, has failed to

implement a program of clean-up activities so as to allow the

plaintiffs to make full use and enjoyment of their outdoor

terrace, living, recreation and entertainment center.

170. The successor in title to "The Developer" will be the

132 homeowners. Unless the new owners are enjoined from

continuing the nuisance, the plaintiffs will suffer permanent and

continuing damages and deprivations of their constitutional

rights. The result of such habitability will cause the plaintiffs

irreparable injuries such as the usefulness and the economic

value of the plaintiffs' property will be substantially diminished

and the plaintiffs will be deprived of the comfortable enjoyment

of their property.

171. The diversion of traffic to the access of the "Fairways

Project" has an effect on the possession of the real estate that the

prospective purchasers will occupy as their residences as herein

alleged.

172. That because plaintiffs may seek a permanent

injunction against the prospective owners, and further, because

the possession of residences will be affected by the location of

the access to the "Fairways Project,” it is reasonable and

necessary to give them actual or constructive notice of the

pendency of this action, as well as to the current and subsequent

encumbrances.

173. An actual controversy has arisen and now exists

between "The Developer" and their successor in title. That

considerations of judicial economy as well as providing the

parties an Opportunity to mitigate their damages make a judicial

declaration both necessary and appropriate.

174. That based on the facts hereinabove alleged, "The

Developer" has caused and is causing a deprivation of plaintiffs’

constitutional rights as aforesaid during the preparation of the

site and the construction of the "Fairways Project;" and will be

creating a condition that will create a continuing and permanent

condition that will be maintained by its successor in title by

permitting close to 1,500 vehicle trips a day (more than one a

minute every minute of the day and night) that will come in and

out of the access gate and on to Corte de la Vista located across

the street from the plaintiffs’ property.

175. Plaintiffs are informed and believe and thereon allege

that "The Developer,” as a result of their acts and omissions as

aforesaid, failed to resist or exhaust its administrative and legal

remedies to challenge "The City's" decision to divert the traffic

from Alicante Road to Corte de la Vista and funnel all of said

traffic into one access point which is located across the street

from the plaintiffs’ home. That the plaintiffs have repeatedly

notified "The Developer” of their objections and the nature and

extent of the damages that would flow from the decision as

aforesaid.

176. Plaintiffs allege that "The Developer" knew that the

benefits of going along with "The City's" decision were greater

than the loss the plaintiffs would suffer and that they would

rather take the risk of a lawsuit from the plaintiffs.

177. The “cooperation” of "The Developer" with "The City”

is tantamount to a conspiracy and the plaintiffs allege on

information and belief that an indemnification agreement exists

between these defendants relating to the potential damages of

the plaintiff and that in any event these defendants should be

held jointly and severally liable to the plaintiffs for their

damages as a result of the acts and omissions of these

defendants in depriving these plaintiffs of their constitutional

rights under color of law as more fully alleged herein.

178. That the temporary, continuing and reversible

condition that "The Developer" created by the manner in which

they performed the site preparation of the "Fairways Project” is

ongoing, but based on reasonable expectations the site

preparation will be completed in another year and the

construction of the 132 homes within three years.

179. On the other hand, "The Developer's" failure to

challenge "The City's" decision to divert the traffic from

Alicante Road to Corte de la Vista and focus all the ingress and

egress traffic for the “Fairways Project" across the street from

plaintiffs' home, or to actively cooperate with "The City"

implementing said decision for its self-aggra

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