# Apendix — Mass v. City of Carlsbad

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0951%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Apendix
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1128

## Text

Court, U.S.
FILED

}

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,

v.
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,
v.
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
v.

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

1

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

2

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.

3

“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;

(c) That even if the effects of the relocation of the
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

6

——

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.

7

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.

9

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,

10

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

1]

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

12

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

13

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

14

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

15

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.

16

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.”

17

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

18

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

19

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;

(c) it failed to state that if they did not appeal the
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

20

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

21

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

22

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

23

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.

24

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

25

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

27

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

29

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.

31

= _ 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

32

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

33

cn

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

35

ne

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR
THE COUNTY OF SAN DIEGO

THOMAS A. MASS and JANET A. MASS, Plaintiffs
v.
CITY OF CARLSBAD, a Municipal Corporation;

FIELDSTONE/LA COSTA ASSOCIATES LIMITED
PARTNERSHIPP, a Califomia Limited Partnership, Defendants

es

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

36

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.

37

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.

38

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

39

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

40

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

41

—

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 .

42

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

43

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;

(c) it failed to state that if plaintiffs did not appeal the
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

44

ee

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.

45

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.

46

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.

ao

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

48

—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.

49

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:

50

(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;

(c) That even if the effects of the diversion of traffic
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-

51

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

52

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

53

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.

54

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.

55

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.

56

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.

57

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

58

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

59

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

61

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

62

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.

63

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
v.

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.

65

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

66

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,

7

67

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

68

ee

rights under the Constitution and in violation of the Federal
Civil Rights A

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0951%3A2. Public record. Not legal advice.