PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP …...COMPLAINT AND VERIFIED PETITION FOR WRIT OF MANDATEPalmieri, Tyler, 2688971.1 Wiener Attorneys at Law 2019000153866 providing notice

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COMPLAINT AND VERIFIED PETITION FOR WRIT OF MANDATE

2688971.1

Palmieri, Tyler, Wiener Wilhelm & Waldron LLP

Attorneys at Law

PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP Michael H. Leifer, Bar No. 138237 [email protected] Erin Balsara Naderi, Bar No. 245097 [email protected] 1900 Main Street, Suite 700 Irvine, CA 92614-7328 Telephone: (949) 851-9400 Facsimile: (949) 757-1225 Attorneys for Plaintiffs and Petitioners Benzen Properties, LLC; XR Realty, LLC; Saint Enterprises Family Limited Partnership; End the Pipeline, an unincorporated association

SUPERIOR COURT OF CALIFORNIA

COUNTY OF ORANGE, CIVIL COMPLEX CENTER

BENZEN PROPERTIES, LLC, a California limited liability company; XR REALTY, LLC, a California limited liability company; SAINT ENTERPRISES FAMILY LIMITED PARTNERSHIP, a California limited partnership; END THE PIPELINE, an unincorporated association,

Plaintiffs and Petitioners,

vs. CITY OF HUNTINGTON BEACH; THE CITY COUNCIL FOR THE CITY OF HUNTINGTON BEACH; DOES 1 THROUGH 25, inclusive,

Defendants and Respondents.

Case No. COMPLAINT FOR BREACH OF CC&RS, ENFORCEMENT OF EQUITABLE SERVITUDES; DECLARATORY RELIEF; VERIFIED PETITION FOR WRIT OF MANDATE (Public Resource Code § 21168; Code of Civil Procedure §§ 1085 and/or 1094.5)

INTRODUCTION

Plaintiffs and Petitioners allege as follows:

1. On April 18, 2019, after providing only two-day's notice of the scheduling of a

City Council meeting, the City of Huntington Beach approved and authorized the execution of

a purchase and sale agreement for property located at 15311 Pipeline Lane, Huntington Beach,

CA (hereafter the "Pipeline Site") for use as a homeless shelter. On or about May 8, 2019, a

grant deed was recorded in the Orange County Recorder's Office as Document Number

sloose

Typewritten Text

Assigned: Dept: CX104

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2019000153866 providing notice of the transfer of the Pipeline Site to the City of Huntington

Beach. A true and correct copy of the Grant Deed is attached hereto as Exhibit 2 and

incorporated herein by this reference.

2. The Pipeline Site is subject to a Declaration of Covenants, Conditions and

Restrictions for Huntington Beach Industrial Park Tract 8694 (hereafter the "CC&Rs"). The

CC&Rs were recorded on April 19, 1977 in the Orange County Recorder's Office as Book

12153, Page 1394. A true and correct copy of the CC&Rs is attached hereto as Exhibit 1 and

incorporated herein by this reference.

3. Plaintiffs Benzen Properties, LLC, XR Realty, LLC and Saint Enterprises Family

Limited Partnership are fee owners of properties that are also subject to the CC&Rs.

4. The City purchased the Pipeline Site for a homeless shelter. The homeless

shelter violates the CC&Rs. The homeless shelter constitutes a nuisance under the CC&Rs.

5. Plaintiffs are informed and believe, and based thereon allege, that the City of

Huntington Beach has commenced to expend funds, including public funds, to convert the

existing industrial building at the Pipeline Site into a homeless shelter. Plaintiffs seek a

temporary restraining order and/or preliminary injunction to prohibit the implementation of a

homeless shelter at the Pipeline Site.

6. Plaintiffs further challenge the action taken by the City Council of the City of

Huntington Beach at the April 18, 2019 meeting approving "all five items as presented by

staff": "(1) Approve Resolution 2019-22 'A Resolution of the City Council of the City of

Huntington Beach Pursuant to SB850 . . .' Declaring an Emergency Shelter Bed Crisis. (2)

Declaration of City's intent to proceed with establishing a Homeless Navigation Center. (3)

Approval and authorization for the Mayor and the City Clerk to enter into the Purchase and

Sale Agreement for 15311 Pipeline Lane (APN 145-537-06), Huntington Beach, CA. (4)

Authorize the City Manager to execute any and all documents related to the Agreement to

further this action. (5) Approve the appropriation of $2,850,000 in the Fiscal Year 2018/19

Revised Budget from the following sources: Redevelopment Dissolution Assignment (100),

Community Development Block Grant Funds (215 and 239), and Residual Receipts Fund

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(233) as needed" (hereafter collectively referred to as the "City's Homeless Shelter Action").

Plaintiff's challenge the City's Homeless Shelter Action on the grounds that the action violates

the City of Huntington Beach Municipal Code and the California Environmental Quality Act

(Pub. Res. Code, §§ 21000-21177) ("CEQA").

JURISDICTION AND VENUE

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

Sections 1085, 1094.5 and 187 and/or Public Resources Code Sections 21168 and/or 21168.5,

without limitation.

8. Venue for this action properly lies in the Orange County Superior Court because

Defendants and Respondents and the Pipeline Site are located in Orange County.

THE PARTIES

9. At all relevant times mentioned herein, Plaintiff BENZEN PROPERTIES, LLC

(hereafter "Benzen Properties") was and is a California limited liability company, authorized to

conduct and conducting business in the State of California. Benzen Properties is the fee owner

of the real property generally located at 15381 Assembly Lane, Huntington Beach, California

(hereafter the "Benzen Property").

10. At all relevant times mentioned herein, Plaintiff XR REALTY, LLC, (hereafter

"XR Realty") was and is a California limited liability company, authorized to conduct and

conducting business in the State of California. XR Realty is the fee owner of the real property

generally located at 15251 Pipeline Lane, Huntington Beach, California (hereafter the "XR

Realty Property"). The XR Realty Property is located immediately adjacent to the Pipeline

Site.

11. At all relevant times mentioned herein, Plaintiff SAINT ENTERPRISES

FAMILY LIMITED PARTNERSHIP (hereafter "Saint Enterprises") was and is a California

limited partnership, authorized to conduct and conducting business in the State of California.

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Saint Enterprises is the fee owner of the real property generally located at 5781 Machine Drive,

Huntington Beach, California (hereafter the "Saint Enterprises Property").

12. The Benzen Property, the XR Realty Property and the Saint Enterprises Property

are all subject to the CC&Rs. Benzen Properties, XR Realty and Saint Enterprises are

collectively referred to herein as the “CC&R Plaintiffs.”

13. END THE PIPELINE is an unincorporated association composed of and

supported by individuals and groups devoted to civic maintenance and improvement, including

the protection of the City of Huntington Beach and proper site selection for a homeless shelter

and/or other appropriate solution. End the Pipeline is comprised of residents, property owners

and business owners in Huntington Beach including those who reside and/or own property less

than 500 feet from the Pipeline Site and those who own properties also subject to the CC&Rs,

among others. End the Pipeline is affected by the actions of the City of Huntington Beach as

specified herein and would be directly affected by an order of this Court. In addition, as an

unincorporated association comprised in part of persons who reside within the City of

Huntington Beach, End the Pipeline has an interest in having the public duty enforced.

14. Benzen Properties, XR Realty, Saint Enterprises and End the Pipeline are

collectively referred to herein as "Plaintiffs."

15. Defendant and Respondent City of Huntington Beach is and at all times

mentioned herein has been a public body established by and subject to its charter, subject to its

own ordinances and existing under the laws of the State of California and is situated in the

County of Orange.

16. Defendant and Respondent City Council of the City of Huntington Beach

(hereafter "City Council") is the duly elected legislative body of defendant and respondent City

of Huntington Beach. The City Council is responsible for implementing and complying with

all of the provisions of CEQA and the Guidelines for Implementation of CEQA (Tit. 14, Cal.

Code Regs., §§ 15000 et seq., referred to herein as the "Guidelines"), the Planning and Zoning

Law, the City's Municipal Code, General Plan, ordinances, rules and regulations.

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17. Defendants and Respondents City of Huntington Beach and City Council are

collectively referred to herein as "City."

18. Plaintiffs are ignorant of the true names and capacities of the defendants and

respondents named herein as DOES 1 THROUGH 25, inclusive, and therefore sues those

defendants and respondents by such fictitious names. Plaintiffs will amend this

complaint/petition to allege the true names and capacities of those Doe parties when

ascertained. Plaintiffs are informed and believe, and on that basis allege, that each of the

parties designated herein as a Doe is responsible in some manner for the events and actions

referred to herein.

19. Plaintiffs are informed and believe, and on that basis allege, that at all relevant

times, the City and the Doe defendants and respondents were and are the agents of each other,

authorized to do the acts herein alleged, each of which was ratified by the others.

20. The true names and capacities, whether individual, corporate or otherwise of

Does 1 through 25 are unknown to Plaintiffs who therefore sue Does 1 through 25 by such

fictitious names. Plaintiffs will amend this petition to allege the true names and capacities of

the Doe respondents when the same becomes known to it. Reference to "City," "City

Council," "Defendants herein shall mean the named defendants and respondents and Does 1

through 25.

21. Plaintiffs are informed and believe, and on that basis allege, that the City and

each of the Does proximately caused the acts, omissions to act, and/or injuries herein alleged.

FIRST CAUSE OF ACTION

Breach of Written Contract/CC&Rs

(By the CC&R Plaintiffs Against All Defendants)

22. The CC&R Plaintiffs reallege and incorporate paragraphs 1 through 21 of this

Complaint as though set forth in full herein.

23. The CC&Rs apply to the property identified in the CC&Rs as "Tract No. 8694 as

per map recorded in Book 401, Pages 45 through 48 inclusive, of Miscellaneous Maps in the

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Office of the County Recorder of Orange County, California." (Ex. 1 [CC&Rs, ¶ 1.01, Ex.

A].)

24. The CC&Rs state, "Declarant, owner of the Property, hereby declares that the

Property is now held, and shall hereafter be held, transferred, sold, leased, conveyed and

occupied subject to the restrictions herein set forth, each and all of which is and are for, and

shall inure to, the benefit of and pass with each and every parcel of the Property and shall

apply to and bind the heirs, assignees, and successors in interest of any owner thereof."

(Ex. 1 [CC&Rs, ¶ 2.01, emphasis added].) The CC&Rs provide that "Every person who now

owns or acquires any right, title, or interest in or to any portion of said property is and shall be

conclusively deemed to have consented and agreed to every covenant, condition and restriction

contained herein, whether or not any reference to this Declaration is contained in the

instrument by which such person acquired an interest in said property." (Ex. 1 [CC&Rs,

¶ 8.01].)

25. The Pipeline Site is subject to the CC&Rs. The grant deed transferring the

Pipeline Site to the City identifies the real property as "Lot 40 of Tract No. 8694, in the City

of Huntington Beach, County of Orange, State of California, as per map recorded in Book 401,

Pages 45 through 48 inclusive of Miscellaneous Maps, in the Office of the County Recorder of

Said County." (Ex. 2 [Grant Deed, Ex. A, emphasis added].) As the now-owner of the

Pipeline Site and as successors in title, the City is bound to the CC&Rs and the Pipeline Site

must conform to the CC&Rs.

26. The Pipeline Site is limited to industrial operations and uses. (Ex. 1 [CC&Rs,

¶ 6.01, subds. (a), (b)].) The CC&R's provide, "Each site in the Industrial Park shall be used

for manufacturing, assembly, warehousing, processing, laboratory, office, professional or

research and development activities. No other uses . . . will be permitted . . ." (Ex. 1

[CC&Rs, ¶ 6.01, subd. (b), emphasis added].)

27. The City seeks to implement a homeless shelter. A homeless shelter is not an

industrial operation. It is an "other use" expressly impermissible by the CC&Rs.

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28. The CC&Rs declare that violation of the CC&Rs is a nuisance, expressly

applicable and enforceable by any Owner against a "public" owner: "The result of every action

or omission whereby any restriction herein contained is violated in whole or in part is hereby

declared to be and to constitute a nuisance, and every remedy allowed by law or equity against

an owner, either public or private, may be exercised by Declarant or by any Owner of property

subject to these restrictions." (Ex. 1 [CC&Rs, ¶ 5.02].) The "other use" expressly

impermissible by the CC&Rs is a nuisance. Further, as explained in further detail below, the

City Homeless Shelter Action violates CEQA and the City's Municipal Code, among other

things, and thus is a nuisance.

29. The CC&Rs further provide that “the failure of Declarant or any property owner

to enforce any restriction herein contained shall in no event be deemed to be a waiver of the

right to do so thereafter nor of the right to enforce any other restriction.” (Ex. 1 [CC&Rs,

¶ 5.05].)

30. The CC&Rs impose mutually beneficial restrictions under a general plan of

improvement for the benefit of all the Owners. The CC&Rs constitute an affirmative

covenant, running with the land and an equitable servitude that is attached to each parcel of

land subject to the CC&Rs.

31. The CC&Rs are enforceable equitable servitudes under California Civil Code

Section 6856, and, as such, shall inure to the benefit of all owners of separate interests subject

to the CC&Rs including the CC&R Plaintiffs.

32. The CC&R Plaintiffs are entitled to an injunction, including a temporary

restraining order, preliminary injunction and permanent injunction prohibiting the City from

taking any action and expending or directing the expenditure of any further funds to implement

the homeless shelter at the Pipeline Site or any use other than industrial operations and uses as

required by the CC&Rs. The CC&R Plaintiffs are informed and believe, and based thereon

allege, that the City intends to continue its conduct in violation of the CC&Rs causing further

breaches of the CC&Rs and causing further damage. Such actions of the City, if they continue,

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will cause serious and permanent damage to the CC&R Plaintiffs, for which there is no

adequate monetary remedy.

33. The CC&R Plaintiffs were required to hire the services of attorneys, and have

thereby incurred attorneys' fees and costs, and will continue to incur such fees and costs in the

future by virtue of the pendency of this action, in an amount according to proof.

34. The CC&R Plaintiffs are not required to file a claim pursuant to Government

Code sections 810, et seq. (the "Tort Claims Act") for the CC&R Plaintiffs' causes of action

seeking injunctive relief and declaratory relief because such causes of action against the City in

this action do not require the filing of a claim. (See Gov. Code, § 905.) The CC&R Plaintiffs

reserve their rights to proceed with further compliance with the Tort Claims Act and to amend

for damages, as appropriate.

SECOND CAUSE OF ACTION

Enforcement of Equitable Servitudes




36. The CC&Rs impose mutually beneficial restrictions under a general plan of

improvement for the benefit of all owners subject to the CC&Rs. The CC&Rs constitute an

affirmative covenant, running with the land, and an equitable servitude that is attached to each

parcel subject to the CC&Rs.

37. The CC&Rs are enforceable equitable servitudes under California Civil Code

Section 6856, and, as such, shall inure to the benefit of all owners of separate interests subject

to the CC&Rs including the CC&R Plaintiffs.

38. At a minimum, the City had constructive notice of the CC&Rs in that they were

recorded prior to the City obtaining a property interest in the Pipeline Site.

39. The City's implementation of a homeless shelter on the Pipeline Site is a breach

and violation of the CC&Rs.

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40. Accordingly, the CC&R Plaintiffs are entitled to judicial enforcement of the

CC&Rs as an equitable servitude, and attorneys' fees as set forth in this Complaint.










THIRD CAUSE OF ACTION

Declaratory Relief




43. An actual controversy has arisen, and now exists between the CC&R Plaintiffs

and the City concerning their respective rights and duties. The CC&R Plaintiffs contend that a

homeless shelter is prohibited by and a violates the CC&Rs. The City seeks to implement a

homeless shelter on a prohibited site, so it apparently disputes the CC&R Plaintiffs'

contentions.

44. A judicial determination is necessary and appropriate at this time in order that the

CC&R Plaintiffs may ascertain the rights and duties of the City regarding the CC&Rs.





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46. The CC&R Plaintiffs were required to hire the services of attorneys, and have

thereby incurred attorneys' fees and costs, and will continue to incur such fees and costs in the

future by virtue of the pendency of this action, in an amount according to proof.

FOURTH CAUSE OF ACTION

Petition for Writ of Mandate

(By All Plaintiffs Against All Defendants)

47. Plaintiffs reallege and incorporate paragraphs 1 through 46 of this Complaint as

though set forth in full herein.

48. Plaintiffs, as well as members of End the Pipeline, complied with subdivisions

(a) and (b) of Public Resources Code Section 21177 and despite short notice exhausted their

administrative remedies by timely commenting on and objecting to the City's Homeless Shelter

Action. Unless this Court grants the requested writ of mandate, the impacts resulting from the

City's decision to approve and proceed with the homeless shelter will extend to areas in which

Plaintiffs and the members, supporters and citizens represented by End the Pipeline own

property, do business, live and will directly and adversely affect the environment.

49. Plaintiffs bring this public interest litigation as a citizen's action. In this petition

for writ of mandate, Plaintiffs do not seek any relief greater than or different from the relief

sought for the general public or for a class of which Plaintiffs and the members and supporters

of End the Pipeline owning property, doing business and residing within the geographical

jurisdiction in the City of Huntington Beach are themselves members. By bringing this

petition for writ of mandate, Plaintiffs seek to enforce an important right affecting the public

interest and to confer a significant benefit, whether pecuniary or nonpecuniary, on the general

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public or a large class of persons. Private enforcement is necessary and places a

disproportionate financial burden on Plaintiffs in relation to their stake in the matter.

50. The City is, and at all times relevant herein has been charged by law with the

performance of all duties arising under CEQA and the Guidelines.

51. Plaintiffs have objected to the City’s Homeless Shelter Action at the

administrative level and thus complied with their requirements to do so. The City's Homeless

Shelter Action is a final determination. If the Court does not grant the relief prayed for herein,

Plaintiffs will suffer irreparable injury for which they have no adequate remedy at law, there

will be a waste, and the failure to enjoin further conduct may tend to render the judgment in

this action ineffectual.

52. Plaintiffs have previously complied with the requirements of Public Resources

Code Section 21167.5 by sending, via United States Postal Service First Class Mail, written

notice of this action to the City. A copy of the written notice provided to the City with proof of

service of same is attached hereto as Exhibit 3 and incorporated herein by this reference.

53. Plaintiffs will comply with the requirements of Public Resources Code Section

21167.7 and Code of Civil Procedure Section 388 by furnishing a copy of this

complaint/petition to the Attorney General of the State of California.

54. Plaintiffs have timely filed this petition for writ of mandate in accordance with

applicable law.

55. Plaintiffs are informed and believe, and based thereon allege, that the City's

Homeless Shelter Action would place a "75 to 90 bed shelter" at the Pipeline Site for homeless

persons and associated facilities. Other than the general information, minimal information has

been disclosed to the public about the homeless shelter and its implementation.

56. Despite many impacts, the City Homeless Shelter Action moved through the

City's "approval process" at lightning speed and with no environmental review under CEQA.

The City held what it referred to as a "work session" concerning the then-proposed City

Homeless Shelter Action on April 15, 2019. Just a few days later, on April 18, 2019, the City

held a "special meeting" and adopted and approved the City Homeless Shelter Action.

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57. The City's initial staff report was made publicly available just 24-hours prior to

the April 18th "special meeting." There was absolutely no reference to or findings relating to

CEQA in the initial staff report.

58. At, or shortly before, the April 18th "special meeting," a "Supplemental

Communication" was issued from the Director of Community Development belatedly asserting

a purported categorical exemption from CEQA.

59. At the April 18th "special meeting," the City Council approved the City

Homeless Shelter Action. Plaintiffs are informed and believe, and based thereon allege, that

the City Council approved "all five items as presented by staff": "(1) Approve Resolution

2019-22 'A Resolution of the City Council of the City of Huntington Beach Pursuant to SB850

. . .' Declaring an Emergency Shelter Bed Crisis. (2) Declaration of City's intent to proceed

with establishing a Homeless Navigation Center. (3) Approval and authorization for the

Mayor and the City Clerk to enter into the Purchase and Sale Agreement for 15311 Pipeline

Lane (APN 145-537-06), Huntington Beach, CA. (4) Authorize the City Manager to execute

any and all documents related to the Agreement to further this action. (5) Approve the

appropriation of $2,850,000 in the Fiscal Year 2018/19 Revised Budget from the following

sources: Redevelopment Dissolution Assignment (100), Community Development Block

Grant Funds (215 and 239), and Residual Receipts Fund (233) as needed." The only resolution

that was publicly available prior to or at the meeting was Resolution 2019-22 which was

limited to the emergency shelter bed crisis. That resolution did not reach the other four items

“approved” by the City. Plaintiffs are informed and believe, and based thereon allege, that the

City Council did not adopt a motion determining the propriety and application of a Categorical

CEQA exemption.

60. The City's Homeless Shelter Action is in violation of CEQA. The City did not

first prepare and certify an environmental impact report (EIR) under CEQA, even though there

is substantial evidence to support a fair argument that the City's Homeless Shelter Action may

have a significant impact on the environment, concerning inter alia, surrounding land use,

parking, noise, public safety, surface water, hazardous substances, traffic and aesthetics, and

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even though the City's Homeless Shelter Action did not qualify for Categorical Exemption

under CEQA and the Guidelines.

61. The City's Homeless Shelter Action is also in violation of the City's Municipal

Code. Such violations include, but are not limited to, the following:

A. Plaintiffs are informed and believe based upon minimal information

disclosed by the City, and based thereon allege, that the City determined that the City's

homeless shelter will have 75 to 90 beds, or even as many as 100 beds. The City's Municipal

Code Section 230.52, subdivision (A), limits emergency shelters to "50 occupants."

B. Plaintiffs are informed and believe based upon minimal information

disclosed by the City, and based thereon allege, that the length of stay for those at the homeless

shelter will be up to 90 days. The City's Municipal Code Section 230.52, subdivision (B)

provides, "Clients must vacate the facility by 8:00 a.m. each day and have no guaranteed bed

for the next night."

C. Plaintiffs are informed and believe based upon minimal information

disclosed by the City, and based thereon allege, that the Pipeline Site will not comply with the

parking requirements for the use provided in Municipal Code Section 230.52, subdivision (I).

62. Plaintiffs are informed and believe, and based thereon allege, that the City was

contractually obligated to the Seller of the Pipeline Site and that the City had placed a sizeable

monetary deposit for the purchase of the Pipeline Site before public hearing and approval.

Plaintiffs and the public were not provided a fair and impartial hearing on the homeless shelter

because it was a decision improperly already made.

63. The City has the legal duty to make its determinations comply with the

applicable law governing such acts. In particular, the City has the legal and nondiscretionary

duty to act in accordance with the requirements of CEQA, the Guidelines, the Planning and

Zoning Law, the City Municipal Code, the City's General Plan, City policies and procedures

and other applicable laws and regulations.

64. The City acted arbitrarily, capriciously, irrationally, unreasonably and without

any or an adequate evidentiary basis in failing or refusing to comply with the requirements of

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CEQA, the Guidelines, the Planning and Zoning Law, the City Municipal Code, the City's

General Plan, City policies and procedures and other applicable laws and regulations. At all

times material hereto, the City had, and continues to have, the ability to comply with its legal

duties. Notwithstanding the efforts of Plaintiffs and others to inform the City of its legal

duties, and to induce the City to comply with its legal duties, the City has failed and refused to

perform these duties as described herein.

65. Plaintiffs have exhausted all available administrative remedies. There is no

provision known to Plaintiffs for any further administrative remedial action from the decision

of the City to approve the City's Homeless Shelter Action.

66. The City has prejudicially abused its discretion by approving the City's Homeless

Shelter Action and permitting the acts and omissions described herein to occur. Plaintiffs were

entitled to review of the City's Homeless Shelter Action by an impartial adjudicator. Plaintiffs

are informed and believe, and based thereon allege, that Plaintiffs did not receive a fair hearing

by an unbiased adjudicator. The lack of fair hearing constitutes an abuse of discretion.

67. In acting and failing to act in the manner described above, the City has acted in

an arbitrary, capricious, and irrational manner lacking any reasonable basis, in violation of

Code of Civil Procedure Sections 1085, et seq.

68. Plaintiffs are beneficially interested in the issuance of the peremptory writ of

mandate as prayed for hereafter. Plaintiffs will be seriously harmed if the City is allowed to

proceed without first complying with applicable laws and regulations.

69. At all times material hereto, the City has been able to perform its duties and

obligations as demanded by Plaintiffs. The City has, however, failed and refused to undertake

its obligations. The City has failed and refused to require or to perform any of the above,

notwithstanding the substantial evidence presented by Plaintiffs and others that such failures

and refusals are contrary to law and will have adverse consequences on Plaintiffs.

70. Alternatively, the decision of the City to approve the City's Homeless Shelter

Action constitutes a final decision as contemplated in Code of Civil Procedure Section 1094.5,

et seq.

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2688971.1


Attorneys at Law

71. Plaintiffs have no plain speedy or adequate remedy at law other than the relief

sought in this petition. In acting and failing to act in the manner described above, the City has

prejudicially abused its discretion in approving the City's Homeless Shelter Action, in violation

of Code of Civil Procedure Section 1094.5, et seq.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against all Defendants, and each of them,

as follows:

The CC&R Plaintiffs Pray for Judgment On the First, Second and Third Causes of

Action:

1. For injunctive relief, including a temporary restraining order, preliminary

injunction and permanent injunction prohibiting the City from taking any action and expending

or directing the expenditure of any further funds to implement the homeless shelter at the

Pipeline Site or any use other than industrial operations and uses as required by the CC&Rs;

2. For an order enforcing equitable servitudes against the City and the Pipeline Site;

3. For declaratory relief as requested;

4. For costs of suit incurred herein;

5. For reasonable attorneys' fees pursuant to contract; and

6. For such other and further relief as the court may deem just and proper.

All Plaintiffs Pray for Judgment On the Fourth Cause of Action/Petition for Writ of

Mandate:

1. For judgment granting a peremptory writ of mandate pursuant to Code of Civil

Procedure Section 1085, et seq. and/or Section 1094.5, et seq. commanding the City to set

aside and invalidate its approvals of the City Homeless Shelter Action, and order the City to

take no further steps toward implementing the homeless shelter at the Pipeline Site unless and

until the City fully complies with CEQA, the Guidelines, the City Municipal Code, General

Plan, the City's policies and procedures and applicable law;

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2688971.1


Attorneys at Law

2. For costs of suit incurred herein;

3. For reasonable attorneys' fees pursuant to California Code of Civil Procedure

Section 1021.5 and all other applicable laws; and

4. For such other and further relief as the court may deem just and proper.

Dated: May 17, 2019 PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP

By: /s/ Michael H. Leifer Michael H. Leifer Erin B. Naderi Attorneys for Plaintiffs and Petitioners Benzen Properties, LLC; XR Realty, LLC; Saint Enterprises Family Limited Partnership; End the Pipeline, an unincorporated association

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VERIFICATION

I have read the foregoing COMPLAINT FOR BREACH OF CC&RS,

4 ENFORCEMENT OF EQUITABLE SERVITUDES, DECLARATORY RELIEF; VERIFIED

5 PETITION FOR WRIT OF MANDATE (Public Resource Code§ 21168; Code of Civil

6 Procedure §§ 1085 and/or 1094.5) and know its contents.

7 I am the manager ofBENZEN PROPERTIES, LLC, a party to this action, and am

8 authorized to make this verification for and on its behalf, and I make this verification for that

9 reason. I am informed and believe and on that ground allege that the matters stated in the

IO foregoing document are true.

1 1 I declare under penalty of perjury under the laws of the State of California that the

12 foregoing is true and correct.

13 Executed on this /07:flday of May, 2019, at Huntington Beach, California.

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Palmieri, Tyler, Wiene r WIiheim & Waldron LLP

Attorneys al law

I\ 2688971. l

-17-COMPLA INT AND VER.IFIED PETITION FOR WRIT OF MANDATE

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VERIFICATION




6 Procedure §§ 1085 and/or 1094.5) and know its contents.

7 I am a manager of XR REAL TY, LLC, a party to this action, and am authorized to

8 make this verification for and on its behalf, and I make this verification for that reason. I am

9 informed and believe and on that ground allege that the matters stated in the foregoing

10 document are true.

11 I declare under penalty of perjury under the laws of the State of California that the


13 Executed on this /(.p""' day of May. 2019, at Huntington Beach, California.

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"-1•rl, Tyle r, Wiener 111,. & Waldron LlP "1.torneya 11 law

II 2688971.1

ARI SUSS

-18-COMPLAINT AND VERIFIED PETITION FOR WRIT OF MANDA TE

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VERIFICATION

I have read the foregoing COM PLAINT FOR BREACH OF CC&RS,



6 Procedure §§ I 085 and/or 1094.5) and know its contents.

7 I am a partner or SAINT ENTERPRI SES FAMILY LIMITED PARTNERSIIJP, a party

8 lo this action, and am authorized lo make this verification for and on its behalL and l make this

9 verification for that reason. I am informed and believe and on that ground allege that the

IO matters stated in the foregoing document are true.

11 1 declare under penalty of petjury under the laws of the State of California that the

12 foregoing is true and conecl.

13 Executed on this / 5tlctay of May, 2019, at Buntin

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P~lm1or1. rvio,. Wjonor Wtlh•lm & Waldro n lLP

II ?/\RR<l7 1 I

-19-COMPLAINT AND VERIFIED PETITION FOR WRIT OF M/\NDATE

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VERIFICATION




6 Procedure § § 1085 and/or 1094.5) and know its contents.

7 I am a member of END THE PIPELINE, an unincorporated association and party to this

8 action, and am authorized to make this verification for and on its behalf, and I make this

9 verification for that reason. I am informed and believe and on that ground allege that the

10 matters stated in the foregoing document are true.

11 I declare under penalty of perjury under the laws of the State of California that the


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P■lmlorl, Tylor, Wlenor WIiheim & Waldron LLP

Attornoy1 ol Law

1l 26ss911.1

Executed on this 10 day of May~ 2019, at Huntington Beach, California.

-20-COMPLAINT AND VERIFIED PETITION FOR WRIT OF MANDATE

EXHIBIT 1

Page 21

EXHIBIT 1 Page 22

>a.. 0 u t--· (/) w co

---WHEN RFC<1RDED MAIL TO: r.;;-~ 00 I I ~ci-1

B~ 12 l 53P6 f 394

R!:COR~ING •!fvtlfSTF:D ft .TITLE IN:.URANGE & TRUST 00,

Huntingtcn Beach Industrial Park P.O. Box C-19560 Irvine, California 92713 Attention: William R. Brasher ·12 g, PM APR 1 9 1:i7r

1.1)1

J. WYi If U1i<t ii•.. (,,11 ;nty flwirrl; ·

DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS

FOR HUNTINGTON BEACH INDUSTRIAL PARK

TRACT 8694

ARTICLE I

RECITALS

Declarart i~ the owner of certain real property in the

C!ty of Huntington Beach, County of Orange, State of California,

described in Exhibit "A" which is attached here·to and by this

reference made a part hereof, hereinafter referred to as the "Pro

perty':.

1.02 In order to establish a general plan for the improvement

and deveJopment of the Property, Declarant desires to subject the

Property to certain conditions, covenants and restrictionsf upon

and subject to which all of the Property shall be held, improved

and conveyed.

2.01

ARTICLE II

GENERAL PROVISIONS

Establishment of Restrictions. Declarant, owner of the

Property, hereby declares that the Property is now held, and shall

hereafter be held, transferred, sold, leased, conveyed and occupied

subject to the restrictions herein set forth, each and all of which

is and are for, and shall inure to, the benefit of and pass with

each and every parcel of the Property and shall apply to and bind

the heirs, assignees, and successors in interest of any owner thereof.

2.02 Purpose of Restrictions. ~he purpose of these restrictions

is to insure proper development and use of the Property. In general,

to provide adequately for a high type and quality of improvement of

the Property in accordance with a general pian.

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EXHIBIT 1 Page 23

BK I 2 I 5~PG I 395

llefini tions. 2.03

(a} ~i_te, "Sits" shal 1 nH,an all contiguous laud 1111d,Jr one

ownership.

(b) 111\provemeots. "Improvements" shall mean and include build

ings, out-buildings, parking areas, loading areas, t r a~kage, fences,

walls, landscaping, poles, signs and any stru~tures of any type of

kind.

(c) Dec]arant. "Decla-rant" shall mean the undersigned, its

successors and assigns,

2,04 Prior to Construction. Prior to construction, the owner of

any site, the lessee of any site or his authorized agent shall

maintuin the site in a neat and orderly condition free of weeds

and other debris.

AR'l'Jl'J.1: 111

REGLJ!.ATION OF lMl'ROV!iMEN'l'S

3,01 Minimum Setback Line ~.

(a) Declarant herein declares that nothing herein shall supe1·

sede the City of Huntington Beach requirements and/or ordinances an

all said require~ents and/or ordinances shall prevail and shall be

the responsibility of buyer or less,·e to understand and conform

therewith.

(b) General - No structure of any kind, and no part thereof shall

be placed on any site closer to the property li11e t.h,rn hL, iciu 1,i·o

vided. The following structures and improvements am specificall _\'

excluded from these setback provi~ions:

(1) Roof overhang, subJect: to the specific apprnval of De

clarant in writing.

(2) Steps and walks.

(3) Pi.Jving and associated c1Hhing, except that l'ehicle parking

areas :,hall not be permitted withiu ten (10) f<, et of the st1·et:t pro

perty line or lines, unless specifi c app,·oval ls giveu by lle claran t

in writing.

(4) Fences, except that no fence shall be placed within the

street setback area unless specific approval is given by Declarant

in writing.

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EXHIBIT 1 Page 24

B~ 12 I 5~P6 1396

(5) Landscaping.

(6) Planters, not to exceed three (3) feet in height.

(7) Displays identifying the owner, lessee or occupant are sub

ject to specific City of Huntington Beach ordir1ance and all such

displays must have approval of Declarant in writing.

(c) Yard Reguirements.

(1) All yards shall be measured either from the existing pro

perty line, the ultimate right-of-way line as ad9pted on the City of

HunLington Beach Master Plan of Arterial Streets and any amendments

thereto, or any precise plan of a street and/or alley alignment

whichever may be the greater.

(2) Front yard. The minimum front yard shall be twenty (20)

feet from major or primary and secondary highways and ten (10) feet from

local streets, measured from the ultimate street property line to

the nearest front wall of the building. The front yard shall be

landscaped with living plants, and ~ermanently maintained. Such area

shall also be furnished with irrigation facilities. The front yard

along major, primary and secondary highways may be used for parkin:

and access ways, however, not less than fifty percent (SOI) of su~,

area shall be landscaped.

(3) Side yards. The minimum required side yards shall be

fifteen (15) feet on one side only and zero (0) feet on the other

side except:

(i) Exterior side yards. Where an exterior side yard

is adjacent to a major ·or primary highway, the minimum required yard

shall be twenty (20) feet and where such yard is adjacent to a local

street, such yard shall be a minimum of ten (10) feet.

(ii) Landscaping ot side yards shall be required only

where such yards are adjacent to a public street, in which case the

landscaping requirements for front yards provided in Section 3,0l(c)(2)

!>hall apply.

(4) Rear yard. There shall be no minimum setback from the

rear property line.

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EXHIBIT 1 Page 25

BK I 2 I 53P6 1397

{d) Subject to Section 3,0l(a) setback lines as set forth in

this Article III may be modified or changed upon application t.o

Declaraut and its subsequent written approval.

3,02 Completion of Construction. After commencement of construction

of any structure, the owner shall diligently prosecute the work

thereon, to the end that the structure shall not remain in a partly

finished condition any longer than reasonably necessary for completion

thereof.

3.03 Excavation. No excavation shall be made except in connection

with construction of an improvement, and upon completion theTeof

exposed opening shall be backfilled and disturbed ground shall be

graded and leveled.

3.04

(a)

Landscaping.

Every site on which a building shall have been placed shall

be landscaped according to plans approved as specified herein.

(b) The property owner, lessee 01· occupant shall landscape and

maintain unpaved areas between the property lines and the setback

lines.

Cc) Landscaping as approved by Declarant shall be installed

prior to occupancy or within ninety (90) days after the completit

of the building,-whichever occurs first.

(d) Landscaping as approved by Declarant shall be subject t0 · he

approval of the Department of Public Works, City of Huntington Beach.

3.05 Signs. No billboard or advertising sign shall be permih.ed

other than those me~ting specific City of Huntington Beach sign

ordinanc-e requirements and approved by Declarant in writing.

3.06 Parking Areas. General - Adequate off-street parking shall

be provided to accommodate all parking needs of employees, visitors

and company vehicles on the site and all parking areas must conform

to City of Huntington Bea.ch requirements and/or ordinances.

(a) Parking shall not be permitted between public street ~avc

ment and property line.

~b) The parking requirements may be modified by Declarant as to

any particular site subject to City of Huntingtou Beach parking

requirements and/or oTdinances.

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BK f 2 l 53P6 I 398

3.07 Storage and Loading Areas. Outside Storage - no material, supplies or products shall be stored or permitted to remain on the property in unscreened areas. Screening of storage nreas shall be accomplished by the use of landscaping, walls, buildings, rustic fencing or any combination thereof, to a height sufficient to screen the stored items, except that such height not exceed eight feet. Storage shall be confined to the rear two-thirds of that property. 3.08 Waste Disposal.

(a) No waste material or refuse shall be dumped, placed or allowed to remain on the property outside a permanent structure unless it is behind a visual barrier screening such areas so they are not visible from neighboring properties or public streets. All such waste and trash materials shall be regularly removed from the property and shall not be allowed to accumulate thereon .

(b) Industrial waste disposal shall be in a manner as prescribed by the governing codes and ordinances. 3.09 Off-Street Parking.

(a) The arrangement, access and number of all parking spaces and or lots shall conform to City of Huntington Beach requirements and/o ordinances.

(b) All yartl areas not facing streets may be used in total for automobile parking when not in conflict with other provisions of City of Huntington Beach requirements and/or ordinances.

(c) Automobile parking areas shall be provided with entrances, exits and aisles adequate to provide safe movement of vehicles, 3.10 Trucking and Loading

(a) Adequate area shall be provided for safe operation of trucks in loading areas.

(b) Trucking areas shall be adequately paved for the type of operation intended.

3.11 Building Regulations. Any building erected on a site shall conform to the following construction practices:

(a) All structures erected on the property, with the exception of trim and minor architectural features, shall be constructed of

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EXHIBIT 1 Page 27

BK 1215~61399

ceramics, masonry, concrete, stucco or other materials of a similar nature apprcved by the Declarant and the City of Huntington Beach, when necessary.

(b) All buildings erected shall conform to the applicable building codes and ordinances of the City of Huntington Beach.

(c) Exterior walls shall be painted or suitably treated in a manner acceptable to Declarant.

(d) All loading doors shall be painted or suitably treated to match or blend with the treatment of the exterior walls. 3.12 Care, Maintenance and Repairs. All structures, landscaping and impr,overaents from time to time placed upon the property in accordance with the terms her.eof or the requirements and/or ordinances of the City of Huntington Beach shall be maintained in good clean condition and repair at al:!. times. In the event any property owner, lessee or occupant shall fail to make or cause such maint,enanc.e or repairs to be made after written demand from Declarant, Declarant may go upon the property and make any necessary repairs and perfonn any maintenance therein which may be necessary to con, ly with the terms herein or the requirements and/or ordinances of th City of Huntington Beach. 3.13. Drainage. All drainage of water fr.om any site and improvements thereon shall drain or flow into adjacent streets or public facilities for such purposes and not upon adjoining sites, and all slopes and terraces on any site shall be maintained so as to prevent any .e:rosion thereof upon such streets or adjoining properties.

ARTICLE IV

APPROVAL OF PLANS 4.01 Administrative Review. No improvement shall be permitted until all plans and specifications have been submitted to the City of Huntington Beacn and Declarant for a Preliminary Plan Review. Said Preliminary Review is designated to benefit all parties of interest in ur1derstanding Ci ty/Declai·ant requirements .

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EXHIBIT 1 Page 28

BK l 2 I 5~P6 1400 4.02 No improvement, as that term is hereinabove defined, shalr be erected, placed, altered, maintained or permitted to remain on any land subject to these restrictions until plans and specifications showing plot layout and all exterior elevations, with materials and colors therefore and structural design, signs and landscaping shall have been submitted to, received by and approved in writing by Declarant. Such plans and specifications shall be submitted in writing over the signature of the owner or lessee of the site or his authorized agent.

4.03 Approval by Declarant shall be based, among other things, on adequacy of site dimensions, ade.quacy of structural design, conformity and harmony of external design with neighboring sites; relation of topography, grade and finished ground elevation of the site being improved to that of neighboring sites; proper fscing of main elevation with respect to nearby streets; and conformity of the plans and specifications to the purpose and general plan and inttnt of these restrictions. Declarant shall not arbitrarily or unrea~onably withhold its approval of such plans and specifications. 4.04 If Declarant fails either to approve or to disapprove sue plans and specif,ications within thirty (30) days after the same have been submitted to and received by Declarant, it shall be conclusively presumed that Declarant has disapproved said plans and specifications.

Upo~ receipt o~ approval from Declarant pursuant to this sect•ion, the owner or lessee to whom the same is given shall, as soon as practicable satisfy all conditions thereof and diligently proceeed with the commencement and completion of all approved construction and alteratio~s. In all cases, work shall be commenced within one (1) year from the date of ~uch approval. If there is a failure to comply with this paragraph, then the approval given pursuant to this section shall be deemed revoked unless Declarant, upon request made prior to the expiration of said one (1) year period, extends the time for commencing the work.

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EXHIBIT 1 Page 29

Br 12 I 5~P6 140 I

4.05 Neith.er Declarant ner its success0rs er assigns shall be liable for damages to anyone submitting plans to them for approva 1, or to any owner or lessee of land affected by this Declaration , by rea~on of mistake in judgment, negligence or nonfeasance arising out of or in connection with the approval or Jisapproval or failure to approve any such plans. Every person who submits plans to Declarant for approval agrees , bv submission of such plans, and every owner or lessee of any said property agrees, by acquiring title thereto or interest therein, that he will not bring any action or suit against Declarant .to recover any such damages. 4.06 Fee. An architectural review fee shall be paid to D.eclarant .at the time plans are submitted to Declarant for approval based upon the following schedule:

(a) When the plans submitted are prepared by an architect licensed to practice in the State of California, the architectur:11 review fee shall be $100.00.

(b) In all other cases, the architectural review fee shall b $250.00.

ARTICLE V

:ENFORCEMENT

5 . 01 Abatement and Suit. All of the provisions herein contained shall run with the la;nd and shall be enforceable in equity. 5.02 Deemed To Constitute a Nuisance . The result of every action or omi~sion whereby any re5triction herein contained is violated in whole or in part is hereby declared to be and to constitute a nuisance, and every remedy allowed by law or equity against an owner, either public or private, may be exercised by Declarant or by any Owner of property subject to these restrictions.

5.03 Attorney's Fees. In any legal or equitable proceeding for the enforcement of this Declaration or to 1estrain any violation of this Declarat i on or any provision hereof, the prevailing par t y shall, in addition to all other costs, be entitled to reasonable attorney' s

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EXHIBIT 1 Page 30

B~ 12 f 53PG 1402

fees. Ali remedies provided h.erein or at law or in equity shall be cumulative and not exclusive. 5.04 Inspection. Declarant may from time to time at any reason-able hour or hours, tnter and inspect any property subject to these restrictions to ascertain compliance therewith. 5.05 Failure to Enforce Not a Waiver of Rights_. With the exception of the time limit for action by Declarallt contained in Section 4 .-04 of Arti-cle IV hereof, the failure of Declarant or any property owner to enforce any restriction herein contained sh.all in no event be deemed to be .a waiver of the right to do so thereafter nor of the right to ·enforce any other restriction.

ARTICLE VI

REGULATION OF OPERATIONS AND USES

6.01 Permitted Operations and Uses. {a) Unless otherwise specifically prohibited herein or by the City .of Huntington Beach requirements and/or ordinances, any industrial operEA:tion and use will be p.ermitted if it is performed c carried out entirely within a building that is so designed and c.onstructed th.at the enclosed operations and uses do not cause or pwoduce a nuisance to adjace11t sit-es such as, but not limited to, vibration, sound, ele.ctro-mechanical disturbance and radiation, electro-magnetic disturbance and radiation, air or water pollution, dust, emission of o4sorous, toxic or n.on-t.oxic matter. All light is . to be shielded and confined within property lines.

(b) Each site in the Industrial Park shall be used for manufactu1 ing, assembly, war,ehousing, pro.c,essing, lab.oratory, ::iffice, professional or research and development activities. No other uses, including but not limited to, boring, mining, quarrying, exploring for or removing .oil or other hydrocarbons, minerals, gravel or earth or the ref in in~ or processing .of same will be permi t1:fi<l that shal J be construed by the Declarant as being objectionable in a gardentype industrial park or by the City of Hunting ton R~arh requirements and/or ordinances.

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EXHIBIT 1 Page 31

BX .I 2 f 53?6 f 403

6.02 Other Operations and Uses. (a) Operations and uses which are neither specifically

prohibited nor specifically authorized by these restrictions may be permitted in a specific case if operational plans and specifications are submitted to, received by and approved in writing by Declarant and the City of Huntington Beach. Approval or disapproval of such operational plans and specifications shall be based upon the effect of such operations or uses on other property subject to these restrictions or upon the occupants thereof. If Declarant fails either to approve or disapprove such operational plans and specifications within thirty (30) days after the same have been submitted to it, it shall be conclusively preswned that Declarant has disapproved said plans and specifications.

(b) Neither Declarant, nor its successors or assigns, shall be liable in damages to anyone submitting operational plans and specifications to them for approval, or to any owner or lessee of land affected by this Declaration by reason of mistake in judgment / negligence nor nonfeasance arising out of or in connection with the approval or disapproval or failure to approve any such ope.rational plans and specifications. Every person who submits operational pl·ans and specifications to Declarant for approval agrees, by submission of such plans and specifications, and every owne.r and lessee of any of said property agrees by acquiring title thereto Qr inter.est therein, that he will not bring any action or suit against Decl~rant to recover any such damages.

ARTICLE VII

TERM, TERMINAT~ON, MODIFICATION AND ASSIGNMENTS OF DECLARANTS' RIGHTS AND DUTIES

7.01 :!'erm. This Declaration, every provision hereof and every covenant, condition and restriction contained herein shall continue in full force and effect for a period of fifty (50) years from the date hereof.

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EXHIBIT 1 Page 32

BK 12 I 53PG 1404

7.02 Termination and Modification. This Declaration, or any

prevision hereof, or any covenant, condition or restriction con

tained herein, may be terminated, extended, modified or amended,

as to the whole of said property or any portion thereof by the

Declarant for a period of not more than ten (10) years or until

Declarant has sold ninety percent (90%) of the acreage in the

Industrial Park. When either of the above provisions are satis

fied, then this Declaration may be modified with the written con

sent of the owners of sixty-five percent (65%) of the square feet

of the property subject to these restrictions. No such termination,

extension, modification or amendment shall be effective until a

proper instrument in writing has been executed and acknowledged

and recorded in the office of the Recorder of Orange County,

California. No such termination, extension, modification, o~

amendment shall be in violation of City requirements and/or ordinances.

7.03 Assignments of Declarants' Riphts and Duties. Any or all

of the rights, powers and reservations of Declarant herein may be

assigned to any person, corporation or association which will

assume the duties of Declarant pertaining to the particular ri12 ts,

powers and reservations assigned, and upon any such person, cor 10-

ra tion or as·socia tions evidencing its consent in writing to ace pt

such assignment and assume such duties, he or it shall, to the

extent of such assignments, have the same rights and powers and

be subject to the same obligations and duties as are given to and

assumed by Dcclarant herein. The term "Declarant" as used herein

includes all such assignees and their heirs, successors and assigns.

If at a~y time Declarant ceases to exist and has not made such an

a~signment, a successor Declarant may be appointed in the same

manner as these restrictions may be terminated, extended, modified

or amended under Section 7.02 of this Article VII.

8.01

ARTICLE VIII

MISCELLANEOUS PROVISIO~S

Co,.structive Notice and Acceptance. Every person who now

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EXHIBIT 1 Page 33

BK I 2 I 53PC 1405

owns or acquires any right, ti~l.e or interest in or to any portion of said property is and shall be conclusively· deemed to have consented and agreed to every covenant, condition and restriction contained herein, wh~ther or not any reference to this Declaration is contained in the instrument by which such person acquired an interest in said property.

8.02 Rights of Mortgagees. All restrictions and other provisions herein contained shall be deemed subject and subordinate to all mortgages and deeds of trust now or hereafter executed upon land subject to these restrictions, and none of said restrictions shall supersede or in any way reduce the security or affect the validity of any such mortgage of deed of trust; provided, however, that if any portion of said property is sold under foreclosure of any mortgage or under the provisions of any deed of trust, any purchas.er of such sale, and his successor and assigns, shall hold any and all property so purchased subject to all of the restrictions and other provisions of this Declaration. 8.03 Mutuality, Reciprocity; Runs With Land. All restrictions, conditions, covenants and agreements contained herein are made for the direct, mutual and reciprocal benefit of each and every part and parcel of said property; shall create mutual, equitable servitudes up.on each parcel in favor of every other parcel; shall create recfpi:ocal rights and obligations between the respective owners of all parce.ls · and privity of contract and estate between all grantees of said parcels, their heirs, successors and assigns; and shall, as to the owner of each parcel, his heirs, successors and assiins, operate a~ covenants running with the land, for the benefit of all other parcels. 8.04 Paragraph Headings. Paragraph headings, where used herein, are in5erted for convenience only and are not intended to be a part of t~is Declaration or in any way to define, limit or describe the scope and intent of the particular paragraphs to which th~y refer .

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EXHIBIT 1 Page 34

BK I 2 I 53PG f 406

8.05 Effect of Invalidation. If any provision of this Decla

ration is held to be invaJ id by nny competent court having

jurisdiction over the Property, the invalidity of such provision

shall not affect the validity of the remaining provisions hereof

iid fA& J!ffll §hBll ramaln In fUll fore~ ifld effect.

IN WITNESS WHEREOF, the undersigned has executed this Decla-

ration this l\:rt,\ day of I\PllL 19..n_.

HUNTINCTON BEACH INDUSTRIAL PARK, a limited partnership

By: Partner

By :

STATE OF CALIFORNIA ) ) ss.

COUNTY OF ORANGE )

On ~d /6 1917,. , hefore me, the undersigned, a Notary Pubf cin and for said State, personally appeared

&r/A/1!!:; /1,,t,s . . , known to me to be the Vice_ Presiden . and · ___ fffi ~.; 1,.. ;~TI , known to me to be the Assistant Secr~tary of Jd~. LUSK & SON, the corporation that executed the within instrument and known to me to be the persons who executed the within instrument on behalf of said corporation, said corporation b.e:ing known to me to be one of tne partners of HUNTINGTON BEACH INDUSTRIAL PARK, the· partnership that executed the within instrument, ana acknowledged to me that such corporation executed the same as such partner and that such pa-rtnership executed the same.

WITNESS my hand anp official seal .

. ·, / . ~l -------+--0~A'---'--'---~ --lfl>-f-fns ~ .

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EXHIBIT 1 Page 35

EXHIBIT "A"

Tract No. 8694 as per map recorded in Book 401, Pages 45 through 48 inclusive, of Miscellaneous Maps in the Office of the County Recorder of Orange County, California.

EXE l BlT " l, "

EXHIBIT 2

Page 36

EXHIBIT 2 Page 37

Commonwealth Land Title Company RECORDING REQUESTED BY:

City of Huntington Beach Real Estate Services Division P.O. Box 190 / 2000 Main Street Huntington Beach, CA 92648

WHEN RECORDED MAIL TO:

City Clerk City of Huntington Beach P.O. Box 190 / 2000 Main Street Huntington Beach, CA 92648

Recorded in Official Records, Orange County Hugh Nguyen, Clerk-Recorder

I IIIII I I 11111111111111111111111111111 IIIII IIIII IIIII IIIII IIIII IIII I I Ill llll 2 4. 00 *$R0010819879$*

2019000153866 1 :45 pm 05/08/19 48 401 G02 6 0.00 0.00 0.00 0.00 15.00 0.00 0.000.000.00 3.00

INCORPORATED AREA APN(s): 145-537-06 . GRANT DEED DOCUMENTARY TRANSFER TAX $ EXEMPT

-SQ,00 Location: 15311 Pipeline Lane Si nature of Dedarant or A ent determinin tax

0-FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Weaver Family Investments, LLC, a Missouri Limited Liability Company hereby GRANTS to THE CITY OF HUNTINGTON BEACH, a municipal corporation, the real property in the City of Huntington Beach, County of Orange, State of California, described as follows:

See attached Exhibit "A" for legal description and Plat Map

Dated: _________ 2019

DEED CERTIACATION - CITY OF HUNTINGTON BEACH

This is to ~~ that the *rest in r{%r~perty conveyed by the Deed dated ~IL ;l.~-. 20 from Weaver Family Investments. LLC. a Missouri Limited bility Company, to the CITY OF

GRANTOR:

Weaver Family Investments, LLC, a Missouri Limited Liability Company

~ By ______________ _

t By ______________ _

HUNTINGTON BEACH is hereby accepted by the undersigned officer or i----------------------------4 agent on behalf of the City Council of the City of Huntington Beach pursuant to the authority conferred by Resolution No. 3537 of the City Council of the City of Huntington Beach adopted on August 7, 1972, and the grantee consents to the recordation thereof by its duly authorized officer.

CITY OF HUNTINGTON BEACH Dated:/>14.)12, aD/9 I ,

This document is solely for the official business of the City of Huntington Beach, as contemplated under Government Code Sec. 27383 and should be recorded free of charge.

Tax Exempt Government Agency OTY OF HUNTINGTON BEACH

~~~ MAIL TAX STATEMENTS TO PARTY SHOWN ON THE FOLLOWING UNE

P. . 2 Main Street Huntin ton Beach APN(s): 145-537-06

12-3220/15311 Pipeline.Grant Deed-fee parcel

EXHIBIT 2 Page 38

--------~-•••~•••••• •----•-•----••-----•- - __ .,_,,_M __ .. -••

RECORDING REQUESfED BY:




INCORPORATED AREA APN(s): 145-537-06 GRANT DEED DOCUMENTARY TRANSFER TAX $ EXEMPT

LocatiOn: 15311 Pipeline Lane SI nature of Dedarant or

FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Weaver Family Investments, LLC, a Missouri Limited Liability Company hereby GRANTS to THE CITY OF HUNTINGTON BEACH, a municipal corporation, the real property in the City of Huntington Beach, County of Orange, State of California, described as follows:


Dated: April 24 • 2019

DEED CERTIFICATION - CITY OF HUNTINGTON BEACH

This Is to certify that the Interest In real property conveyed by the Deed

GRANTOR:

Weaver FamUy Investments, LLC, a Missouri Limited Liability Company

By~

Name: Michael G. Weaver, Manager

By'~~ (oyAJIJU~\ Na~hy A. Weaver, Manage?

APPROVED AS TO FORM: Michael Gates, City Attorney

dated -----~ 20__, from Weaver Family By: ____________ _ Investments, LLC, a Missouri Limited Uablllty COmpany, to the CITY OF Assistant/Deputy City Attorney HUNTINGTON BEACH Is hereby accepted by the undersigned officer or t------------------------1 agent on behalf of the City Council of the City of Huntington Beach This document Is solely for the official business of the Qty of pursuant to the authority conferred by Resolutlon No. 3537 of the aty Huntington Beach, as contemplated under Government Code Sec. Council of the Cty of Huntington Beach adopted on August 7, 1972, and the grantee consents to the recordation thereof by its duly 27383 and should be recorded free of charge. authorized officer.

CITY OF HUNTINGTON BEAOI Dated: _____ _

By: ________ _

CITY CLERK

Tax Exempt Government Agency OTY OF HUNTINGTON BEACH

Robin Estanislau, aty Clerk

By: _______ _ OlYa.ERK

MAIL TAX STATEMENTS TO PARlY SHOWN ON THE FOLLOWING UNE H

12-3220/15311 Pipeline.Grant Deed-fee parcel.doc

EXHIBIT 2 Page 39

RECORDING REQUESTED BY:




INCORPORATED AREA APN(s): 145-537-06 GRANT DEED DOCUMENTARY TRANSFER TAX$ EXEMPT

Location: 15311 Pipeline Lane Si nature of Declarant or A ent determinin tax

FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Weaver Family Investments, LLC, a Missouri Limited Liability Company hereby GRANTS to THE CITY OF HUNTINGTON BEACH, a municipal corporation, the real property in the City of Huntington Beach, County of Orange, State of California, described as follows:


Dated: __ A___..p_r_i_l_2_4 __ __,. 2019

DEED CERTIFICATION - CITY OF HUNTINGTON BEACH

This is to certify that the interest in real property conveyed by the Deed

GRANTOR:

Weaver Family Investments, LLC, a Missouri Limited Liability

Comp~}/ . .

Bv~fi_C:. Wu v-, {_~~··7~/ \ Name: Michael G. Weaver, Manager ,,... By ___ -:------------Name: Timothy A. Weaver, Manager

APPROVED AS TO FORM: Michael Gates, City Attorney

dated -----~ 20____, from Weaver Family By: _____________ _ Investments, LLC, a Missouri Limited Liability Company, to the CITY OF Assistant/Deputy City Attorney HUNTINGTON BEACH is hereby accepted by the undersigned officer or .,__ ________ .....;.._.....;,, __________ --1 agent on behalf of the City Council of the City of Huntington Beach pursuant to the authority conferred by Resolution No. 3537 of the City Council of the City of Huntington Beach adopted on August 7, 1972, and the grantee consents to the recordation thereof by its duly authorized officer.

CITY OF HUNTINGTON BEACH Dated: ______ _

By:-----------CITY CLERK

12· 3220/15311 Pipeline.Grant Deed-fee parcel.doc

This document is solely for the official business of the City of Huntington Beach, as contemplated under Government Code Sec. 27383 and should be recorded free of charge.

Tax Exempt Government Agency CITY OF HUNTINGTON BEACH

Robin Estanislau, City Clerk

By:----------CITY CLERK

APN(s): 145-537-06

EXHIBIT 2 Page 40

------------ --·---·- -·-·--· -· - --··•--· ·- -----

CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT

A notary public or other officer completing this certificate verifies only the Identity of the Individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

Wsso-_..t State of ____ 'u_u ________ _

On _ __,_JP"'--'-,&.R~L..,._.,.9 ..,.2,.,,.01Hl9,___ __ before me, ___ Imn_' _Z._Bre_ml_er_•_N_otary_Pu_bllc_' ---personally Date Name & litle of Officer (i.e, Jane Doe Notary Public)

appeared 4}Mpf~Y fl ,2;1tv~v:..-. M&rar~ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same In his/her/their authorized capacity{les), and that by his/her/their slgnature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct. ·

(Seal)

12·3220/15311 Pipeline.Grant Deed-fee parcel.doc

IRVIN Z. BREMLER Notary Public, Notary Seal

State of Missouri St. Louis County

Commission # 14436065 Mv Commission Expires 12-03-2022

EXHIBIT 2 Page 41

CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of t'A{l~VZt, l 4.-

County of _~0-~_"-_Vl~j_e _______ _

On Aj>rl I 2.A::>, 2...o l ct before me, G,.ytt,o. t;, K.&~, (\Jo~ Pu.blte..personally Date Name & Title of Officer (i.e, Jane Doe Notary Public)

appeared __,f:1.___._,te,_ln_tt_e..-l_,;__C-,_e_~ __ r"' d _ _.;;..w_e._____;-._ver ____________ __, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s@are subscribed to the within instrument and acknowled~ to me that ~he/they executed the same in @,er/their authorized capacity(ies), and that by@slher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENAL TY OF PERJURY under the laws of the State of california that the foregoing paragraph is true and correct. ·

(Seal)

12-3220/15311 Pipeline.Grant Deed-fee parcel.doc

EXHIBIT 2 Page 42

EXHIBIT "A"

Legal Description

All that certain real property situated in the County of Orange, State of California, described as follows:

LOT 40 OF TRACT NO. 8694, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 401, PAGES 45 THROUGH 48 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

EXCEPT THEREFROM ALL OIL, OIL RIGHTS, NATURAL GAS RIGHTS, MINERAL RIGHTS AND OTHER HYDROCARBON SUBSTANCES BY WHATEVER NAME KNOWN, TOGETHER WITH APPURTENANT RIGHTS THERETO, WITHOUT, HOWEVER, ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND NOR ANY PORTION OF THE SUBSURFACE LYING ABOVE A DEPTH OF 500 FEET, AS EXCEPTED OR RESERVED JUNE 19, 1972 IN BOOK 10179, PAGE 104 OF OFFICIAL RECORDS IN SAID COUNTY.

Assessor's Parcel Number: 145-537-06

12-3220/15311 Pipeline.Grant Deed-fee parcel

EXHIBIT 3

Page 43

EXHIBIT 3 Page 44

Michael H. Leifer Direct Dial (949) 851-7294

Direct Fax (949) 825-5412

[email protected]

VIA U.S. MAIL

Robin Estanislau

PALMIERI TYLER ATTORNEYS AT LAW

May 17, 2019

City Clerk, City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648

Refer To File No. 39816-000 Document I.D. 2692282.1

Re: Notice of Commencement of Action - Public Resources Code Section 21167.5 City's April 18, 2019 Action Concerning the Homeless Shelter at 15311 Pipeline Lane

Dear Ms. Estanislau:

Please take notice that Benzen Properties, LLC, XR Realty, LLC, Saint Enterprises Family Limited Partnership and End the Pipeline intend to commence an action against the City of Huntington Beach and its City Council to set aside the purported approvals made on April 18, 2019: "(l) Approve Resolution 2019-22 'A Resolution of the City Council of the City of Huntington Beach Pursuant to SB850 . . .' Declaring an Emergency Shelter Bed Crisis. (2) Declaration of City's intent to proceed with establishing a Homeless Navigation Center. (3) Approval and authorization for the Mayor and the City Clerk to enter into the Purchase and Sale Agreement for 15311 Pipeline Lane (APN 145-537-06), Huntington Beach, CA. (4) Authorize the City Manager to execute any and all documents related to the Agreement to further this action. (5) Approve the appropriation of $2,850,000 in the Fiscal Year 2018/19 Revised Budget from the following sources: Redevelopment Dissolution Assignment (100), Community Development Block Grant Funds (215 and 239), and Residual Receipts Fund (233) as needed." The litigation will challenge (among other things) the City's failure to comply with the California Environmental Quality Act (Pub. Resources Code § § 21000 et seq.), the State Guidelines for Implementing CEQA (Tit. 14, Cal. Code Regs., § § 15000, et seq.) as well as the City's Municipal Code.

This notice is provided to you pursuant to Public Resources Code section 21167.5.

MHL:ebn

1900 Main Street, Suite 700, Irvine, CA 92614-7328 I T 949.851.9400 I F 949.851.1554 I ptwww.com

EXHIBIT 3 Page 45

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2

PROOF OF SERVICE

3 I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 1900 Main Street, Suite 700, Irvine, CA 92614-

4 7328.

5 On May 17, 2019, I served the following document(s) on the person or persons listed on the Service List:

6 NOTICE OF COMMENCEMENT OF ACTION - PUBLIC RESOURCES CODE

7 SECTION 21167.5 CONCERNING THE CITY OF HUNTINGTON BEACH'S APRIL 18, 2019 ACTION CONCERNING THE HOMELESS SHELTER AT 15311 PIPELINE LANE

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9

10

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SERVICE LIST

Robin Estanislau City Clerk, City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648

[Kl (UNITED STATES MAIL) I enclosed the document(s) in a sealed envelope or package addressed to the person(s) listed on the Service List. I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this firm's practice of collection and processing mail. Under that practice it would be deposited with the United States postal service on that same day in the ordinary course of business in a sealed envelope addressed as indicated on the Service List, with postage fully prepaid, or in the alternative, I deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid.

Place of Mailing: Irvine, California.

1 9 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

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Palmlert, Tyler, Wiener

Wilhelm & Waldron LLP Altorneys al Law

11 o.o

Executed on May 17, 20 I 9, atlrvine, California ~

Lauren Eliwbeth Murphy ~➔-'------------(Type or print name) ( 1gnature)

- 1-

Documents

PALMIERI, TYLER, WIENER, WILHELM & WALDRON LLP …...COMPLAINT AND VERIFIED PETITION FOR WRIT OF MANDATEPalmieri, Tyler, 2688971.1 Wiener Attorneys at Law 2019000153866 providing notice