UCLA Hotel: Second Amended Complaint (CEQA Case) by Daniel J.B. Mitchell

CEQA (California Environmental Quality Act) and (2) acted unlawfully in failing to obtain

the requisite land use entitlements for the project from the City of Los Angeles, which

entitlements are required because the commercial hotel, public restaurant, and

commercial catering service contemplated by the project are being provided to the

general public at a level which is far beyond that which can reasonably be deemed to be

“incidental” to the University’s core mission of education, research, and public service.

Operating commercial, proprietary ventures on University property is prohibited under

the public trust doctrine, the University’s Articles of Incorporation, By-Laws, policies, and

the University of California’s 501(c)(3) tax exemption. Substantial evidence exists in the

record to support the conclusion that the LUSKIN CONFERENCE AND GUEST

CENTER, to survive economically, must cater to a majority of non-academicians due to

the lack of sustained demand from students, faculty, or staff for the kind of commercial

hotel and banquet services contemplated by the project. As such, REGENTS cannot

avail itself or otherwise rely on any exemption from having to comply with the land use

requirements of the City of Los Angeles. In addition, PETITIONER further alleges that

REGENTS violated CEQA when they approved an amendment to the UCLA 2002

LRDP (Long Range Development Plan) without fairly or objectively considering the

environmentally and financially superior alternatives which were available.1 In short,

19 1

20 21 22 23 24 25 26 27 28

As noted in ¶ 21 below, at the March, 2012 meeting of the Regents Committee and Grounds and Buildings, Regents withheld approval of the project’s financing pending a report-back on why more practical and less costly alternatives were not being presented. Instead of responding to the Committee’s request, University officials presented the same project to the Committee, this time accompanied by a “clarifying” letter from the Luskins dated July 3, 2012, which threatened to withdraw their offer of gift if the project was not located in the area specified by the Luskins (i.e. Lot 6 (near central campus)). Regents were incorrectly told that the Luskin Offer of Gift represented a binding commitment. This was false because (i) the Regents never formally accepted the Luskin Offer of Gift; (ii) the Luskin Offer of Gift did not include the language required by CEQA and UC Policy that any acceptance was conditioned upon CEQA approval coming first before a discussion and approval of the financing; (iii) that the UCLA ViceChancellor purporting to “accept” the Luskin Offer of Gift on behalf of the Regents and the UCLA Foundation lacked the right, power, or authority to do so; and as a consequence (iv) the Luskin Offer of Gift did not represent any kind of “binding” commitment on the University; and is in fact totally unenforceable today due to the foregoing infirmities. Petitioner further contends that these acts and false statements by University Officials to the Regents constitute a focused, determined, and improper effort to pre-judge and force Regents to pre-commit to approve the project as presented and desired by University officials before an objective CEQA review could be completed and approved by Regents. Indeed, _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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PETITIONER alleges that unlawful means were used by REGENTS to accomplish an

unlawful objective when the law requires that both the objectives and the means to

accomplish those objectives be lawful. In this case, that meant REGENTS fully abiding

by its own policies, procedures, and protocols so as not to pre-commit to a given result

or outcome. REGENTS “findings” in support of the project must be based on substantial

evidence which PETITIONER alleges did not occur in this instance because of unlawful

demands made by donors MEYER and DOREEN LUSKIN imposing a new condition to

their $40 Million Offer of Gift to the effect that REGENTS refusal to locate the project on

the UCLA central campus area occupied by Lot 6 would result in the LUSKINS’

10 11

withdrawal of their Offer of Gift. 2. THE LUSKIN CONFERENCE AND GUEST CENTER consists of an 8 story

294,000 gross square feet structure costing $162 million, only 8.5% of which is a

conference center, and 91.5% of which consists of a commercial public hotel

containing 250 guest rooms, a public restaurant, and a commercial catering kitchen

for both UCLA and non-academic clients. In their Offer of Gift (never formally accepted

by REGENTS as required by Regents’ Standing Order Nos 100.4(dd)(1) and

100.4(dd)(8)), the LUSKINS offered to pay $40 Million of the construction costs.

PETITIONER challenges the LUSKIN CONFERENCE AND GUEST CENTER

PROJECT and the Amendment to the LRDP under CEQA on the following procedural

and substantive grounds:

a. The EIR for this project and the amendment to the Long Range

Development Plan (LRDP) are especially deficient in their analysis of the adequacy of

available LA Fire Department service for both UCLA and the community because each

24 25 26 27 28

Regents were advised by University Counsel at their March meeting that a binding, irrevocable action prior to certification of the EIR would constitute a violation of CEQA. And yet, Regents were told by UCLA officials at their July 2012 meeting, that the Luskin Offer of Gift was a binding commitment -- the very type of action they had been warned against at the prior meeting, but this time, the General Counsel failed to advise Regents that by recognizing the Luskin Offer of Gift as a binding, irrevocable commitment prior to Regents’ completion of its CEQA review, Regents would violate CEQA. _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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lacks (i) any meaningful discussion of how the absence of adequate emergency

services can be reasonably mitigated; or, if not mitigated, (ii) the formal adoption of a

statement of overriding considerations. REGENTS ignored substantial evidence in the

record that fire protection service in and around the UCLA campus is inadequate

according to LA Fire Department records because of a lack of available fire service

personnel from Stations 37 and 71.2 With a daytime population of between 60,000 and

80,000 people, UCLA relies heavily on the resources of the LA Fire Department, 3 which

in 2011, made 1100 emergency responses to the UCLA campus, most of which were

medical emergencies; and for which the Fire Department received no Fair Share

compensation from UCLA. PETITIONER contends that in the face of substantial

evidence demonstrating the inadequacy of current fire emergency response time and

the inadequacy of LA Fire Department staffing, REGENTS were required to consider

the full nature and extent of the current fire protection services needed; then compare

the same against the nature and extent of the fire services required to fulfill that need;

and then provide funding for REGENTS Fair Share of the cost of fire services and other

off-campus infrastructure needs. REGENTS failure to have done so violated CEQA;

17 18 19 20 21

In the Fire Department’s own words: “[T]he existing staffing levels, equipment inventories, and fire station facility space are not adequate to meet the project area's current demand for fire service. Fire Station 37 [on the UCLA campus] is too old and small" (Comment Letter, Capt. William N. Wells, LA Fire Department, Casden Project EIR, September 22, 2008). No documentation has been provided by REGENTS to counter this very clear assessment that fire protection service is not adequate. Instead, REGENTS sought to downplay its reliance on LAFD by claiming that only two fires actually occurred during FY 2010-11 (FEIR, p. 2-143). Petitioners contend that Regents failed to analyze the fire response time deficiencies identified in the record, or to propose mitigation measures for those adverse impacts.

22 3

23 24 25 26

A spreadsheet documenting each visit to campus during 2011 was submitted as part of Petitioner’s EIR comments, along with a photo of the Dispatch Center Map and news articles exposing errors in the dispatch reports for the City that show substandard response times. Subsequently the LA Grand Jury issued a report on the severity of LAFD response time problems. Regents focus was on roadway access for fire trucks and the alarm system for the hotel. Regents ignored the entire issue of LAFD staffing, equipment and response time – i.e., if an alarm would be answered in time. For the campus population and its neighboring community, this is a matter of life and death and thus a CEQA concern.

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_______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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b. REGENTS and University Officials pre-committed to the outcome of the CEQA

review as evidenced by (i) the omission from the Luskin Offer of Gift (or any purported

acceptance by University Officials) of the qualifying condition mandated by UC policies

warning that CEQA review might significantly alter the project as contemplated, or result

in the project’s complete rejection,4 and that the Luskin Offer of Gift was in all respects

conditional on CEQA review being first approved, as per REGENTS own rules and

policies (See ¶¶ 15 &16 below); (ii) REGENTS deciding on the project’s financing and

committing to the same in advance of CEQA review, contrary to REGENTS policies and

procedures; (iii) REGENTS failure to ever formally accept the Luskin Offer of Gift, as

mandated by its policies; (iv) University officials’ (both the UC President and Officers of

UCLA Foundation) purporting to have “accepted” the Luskin Offer of Gift despite their

having lacked the right, power, and delegated authority to have done so; and (v)

REGENTS having short-circuited a thorough review of all aspects of the project which

could have a significant impact on the environment, including whether the Luskin Offer

of Gift could be used to purchase an off-campus hotel or whether a conference center

could be constructed alone without a hotel, at one or more designated sites; none of

which was considered in the Draft EIR or Final EIR5; c. The EIR lacks an adequate review and discussion of the Fair Share6

18 19

mitigation measures needed to alleviate the adverse impacts the project will have on the

20 4

21 22

Regents failure to follow its own rules would also have the effect of nullifying any charitable tax deductions already made by the Luskins and disabling the Luskins from making any future deductions on sums paid to the UCLA Foundation pursuant to their offer of gift. 5

23 24

In fact, when Regents queried UCLA’S Vice-Chancellor, Steve Olsen on purchasing a hotel such as the “W Hotel” (which would have been cheaper than constructing a new building on-campus at Lot 6,), his response was that it was considered for about twelve seconds (i.e. not at all). 6

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The UC CEQA Handbook § 3.3.23 addresses Fair Share payments as a way of mitigating adverse offcampus environmental impacts. For example, in the case of the UC Santa Cruz Inn (located off campus), Regents identified the payment of TOT (Transient Occupancy Taxes) to the City of Santa Cruz as a fair share mitigation measure (Report of UC President to the State Legislature dated January 27, 2012, pages 99 and 107). To date, UCLA has refused to pay or acknowledge an obligation to pay any hotel, property, or other local taxes arising from its multiple campus hotel operations. A ‘related’ taxpayer lawsuit identifying this omission as a waste and misappropriation of public funds under CCP §526a was filed on _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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City’s off-campus infrastructure (e.g. emergency services) as part of a competent urban

decay analysis7; this despite a letter from Los Angeles City Councilmember Paul

Koretz8 objecting to the non-payment of transient occupancy taxes which could be used

to fill potholes and fund emergency services and a letter from the Los Angeles Hotel

Association raising similar concerns. REGENTS refusal to analyze the economic impact

of UCLA’s hotels9 on the city’s crumbling infrastructure or to provide meaningful

mitigation Fair Share measures (which could include the payment of transient

occupancy taxes or an in lieu fee) therefore violates CEQA;

d. REGENTS improperly abandoned all alternatives to Lot 6 after their receipt of

a letter dated July 3, 2012, from MEYER and DOREEN LUSKIN purporting to pull their

gift offer of a $40 Million contribution to construct the project unless the REGENTS

acceded to the Luskins’ land use demands regarding the proposed (Lot 6) location,10

13 14 15 16 17 18

April 3, 2013. This action, styled Save Westwood Village, et al. vs. Antoinette Christovale, et al., Case No. BS 142388, seeks to compel REGENTS to obey the law, honor their obligations, and refrain from continued unlawful activity in facilitating the operation of commercial hotels on the UCLA campus. 7

REGENTS failure to have conducted an urban decay analysis was based on the unsupported and erroneous contention that the project will increase business for local hotels and businesses when several hotels testified that they relied on UCLA visitors and provided substantial discounts to frugal academic visitors traveling on strict federal per diem limits. 8

Letter dated July 10, 2012, from Hon. Paul Koretz to Regents (CPRA #2012-671).

20 21 22

UCLA presently operates UCLA Guest House Hotel (61 rooms), Tiverton House Hotel (100 rooms), Lake Arrowhead Conference Center and Mountain Resort (105 rooms), Courtside Collection (100 summer hotel rooms on campus) and thousands of dorm rooms converted to summer conference hotel use. The LUSKIN CONFERENCE AND GUEST CENTER would add an additional 250 luxury hotel rooms on campus. 10

23 24 25 26 27 28

This despite the testimony of Vice Chancellor Steve Olsen who orally advised REGENTS on March 28, 2012, that the Luskins’ gift (to the UCLA Foundation) as set out in their Offer of Gift dated December 23, 2010, was not tied to a specific site. (Minutes of Grounds and Buildings Committee, March 28, 2012, p. 5); nor was it clear that the Luskins possessed the right or authority to speak for the UCLA Foundation which is the entity to whom the Luskins’ made their gift offer. The public was denied the ability to meaningfully comment on this matter because the text of the Luskins’ Offer of Gift letter had not been disclosed to the public in connection with the August 31st FEIR; nor was the project description revised in light of the land use restrictions (lawful or otherwise) imposed by the Luskins. Regent Gavin Newsom questioned what appeared to be an attempt to “railroad” a decision in favor of the Lot 6 site regardless of the environmental and economic consequences when he noted at the July 17, 2012, meeting of the Grounds and Buildings Committee as follows: _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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without informing the public of the Luskins’ newly imposed gift restriction, or without

undertaking any discussion or determination of the Luskins’ authority to modify their gift

to the UCLA FOUNDATION (to whom the gift was made) by specifying and attempting

to condition and direct their gift be applied to a specific on-campus location.11 This had

the effect of de facto improperly modifying the FEIR project description given that the

project, as described in the FEIR failed to correspond with the LUSKINS’ belatedly

proffered gift restriction.12 As a result, both the Draft Environmental Impact Report and

Final Environmental Impact Report documents failed to undertake a good-faith thorough

analysis of alternatives requested by the public and the members of REGENTS

Grounds and Buildings Committee in March, 2012, such as (i) the acquisition of an

existing hotel, (ii) entering into a ‘private-public partnership’ to jointly develop a

12 13 “I’m not denying that Mr. and Mrs. Luskin affirmed their support for this project. I’m just questioning. It just goes to, were we, I guess, I still have and feel, and excuse me for being on the basis of this conversation, being a little more cynical about how legitimately we looked at alternatives, if indeed we had known all along that this was the site, that we needed to choose, that it was already in essence chosen for us pursuant to the gift.”(Audio Link to Regents Meeting of July 17, 2012 at http://uclafaculytyassociation.globspot.com/2012/07/listen-to-regents-meeting-july-16-2012.html at 1:19.19). (Emphasis Added).

14 15 16 17 18 19

This is just one bit of evidence reflective of effort by the UC Officials improperly pushing the project with the objective of having Regents unlawfully pre-commit to a decision in favor of the project and project location before an objective, competent, and thorough CEQA review had been completed.

21 22

No documentation or testimony exists that the initial Luskin Offer of Gift dated December 23, 2010, was ever modified by the UCLA Foundation; nor is there any evidence in the record that Regents ever formally accepted the Luskin Offer of Gift as mandated by Regents Standing Order Nos. 100.4(dd)(1) or 100.4(dd)(8). 12

23 24 25 26 27 28

Petitioner contends these facts constitute evidence of Regents pre-commitment to the project in violation of CEQA because neither the Luskins’ original Offer of Gift, nor their subsequent “clarifying” letter contained the required precautionary language as required by UC Development Policy Manual Chapter 1, §C.2 (“Environmental Procedures and Fundraising Campaigns”) that any “gift” (be it either an offer or an acceptance) is provisional on CEQA approval and that the project, as envisioned by the donor, may not occur or may be substantially revised due to CEQA and the need to take into account all CEQAmandated environmental considerations which impact the project. Thus, instead of being cautioned that their “vision” for the project may not survive an objective, lawful CEQA analysis and review, the Luskins and UCLA Campus officials were driving the process and prejudicing (and pre-judging) the outcome by using the Luskin Offer of Gift to induce Regents to pre-commit to the Luskins’ desired CEQA outcome. _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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commercial hotel on another site13, or (iii) the construction adjacent to the Wilshire

subway stop of just a conference center without a commercial hotel on Lot 36 similar to

the Beckman Center at UC Irvine;

e. Both the Draft Environmental Impact Report and Final Impact Environmental

Report documents fail to undertake an accurate, thorough, thoughtful, and competent

traffic analysis; particularly the decision to grant a trip generation discount of 866 daily

car trips due to the removal of 100 visitor parking spaces in Lot 6 given that there is a

very likely expectation that visitors will still continue to come to campus; f. The DEIR and FEIR failed to provide an accurate parking demand study,

9 10

ignored the recommendation of UCLA’S consultant, PKF, for several hundred additional

parking spaces; violated the City of Los Angeles parking requirements for hotels and

restaurants; and after certification of the EIR, intensified the project’s density by

increasing the banquet hall from 500 persons (DEIR p. 3-5) to 75014, thus increasing the

demand for parking and creating added traffic impacts; all backed by the erroneous

contention in the EIR that despite the loss of 754 parking places in Lot 6, ample nearby

parking exists.15 Substantial evidence in the record which REGENTS ignored indicates

17 13

18 19 20 21 22 23 24 25

A public private partnership alternative involving the use of an existing a private hotel was dismissed in the presentation to REGENTS on the basis that debt was cheaper for them than for a private entity. But in actuality, such a partnership would have been beneficial because$40 Million of debt would have been eliminated with ample cash available to build the conference center. So using the availability of advantageous financing to justify rejection of a ‘public-private partnership’ alternative made no sense. Further evidence of Regents’ having pre-committed to the project as approved is the lack of any evidence in the record of a good faith effort being undertaken by Regents to even explore a joint venture alternative. UCLA officials claimed that the Luskin gift could not be used for a public-private partnership; yet, the gift ended up being used to fund a commercial hotel venture whose economic viability is dependent on sales to non-academicians which is the very antithesis of the mandate of UCOP-BUS 72 that any auxiliary enterprise, to be lawful, can only be incidental to the provision of core public trust uses. The Luskin Project represents precisely the opposite (and thus unlawful) circumstance where any benefit to students, faculty, and staff is but incidental to the core commercial (and thus unlawful) purpose of the hotel. Indeed, UCLA’s internal survey of campus needs concluded that most conferences were day meetings that did not require overnight accommodations (PKF Study, 2009, p. V-1). 14

www.UCLAmeetings.com/Meeting_Event-Spaces/LuskinConferenceCenter.

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Effective January 28, 2013, UCLA imposed “stack parking” on the roof of Lot 1 of the Medical Plaza, and increased the permit parking fees on all campus lots. This demonstrates that there is currently a parking shortage in the area. (Email notice from UCLA Transportation entitled “Stack Parking on the Roof _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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that parking in the area cannot absorb the loss of 754 parking spaces; and that the UC

and UCLA policy-mandated payment for parking replacement and analysis of impacts of

parking loss on campus parking fees was ignored (even though in an earlier evaluation

of an alternative site, such an analysis was undertaken; then abandoned when it came

to the Lot 6 site); this despite expert analysis on UCLA parking replacement policy

implementation by UCLA Professor Donald Shoup for the UCLA Academic Senate

Faculty Welfare Committee. PETITIONER contends that all of these issues must be

addressed in a re-circulated EIR; g. REGENTS failed to include an urban decay analysis as part of the EIR, and

9 10

based its analysis of competition with local hotels on demand for commercial hotel

rooms, not on the demand for non-commercial academic guests (the ostensible use of

the project);16

h. REGENTS caused to be omitted from the public’s review, discussion and

submission (GB-3) the following two EIR studies which were only first presented to

REGENTS less than 24 hours prior to REGENTS full board meeting of September 12,

2012, to act on the favorable recommendation of REGENTS’ Grounds and Building

17 18 19 20 21

of PS1 Effective January 28, 2013). Also to be noted is that Regents failure to provide for parking replacement compensation to Parking Services violated UC Policy on Transportation Systems and Parking Program Principles which mandates consistent application of parking replacement policies (April 2002). 16

22 23 24 25 26 27 28

The lack of an urban decay analysis in the DEIR for the Luskin Conference and Guest Center project is reflected in the following language: “Therefore the following economic issues are not addressed further in this EIR: [Whether] the Project would result in economic blight urban decay for Westwood and the City of Los Angeles and [whether] an economic analysis should be prepared.” (DEIR LUSKIN CONFERENCE AND GUEST CENTER, Section 1.4 “Areas of Controversy,” p.1-5. On September 1, 2012, the FEIR stated that no further analysis was needed in the EIR on this issue (pages 2-6). But on September 11, 2012, just before REGENTS’ September 11, 2012 hearing to certify the EIR, a short letter from Regents’ consultants, PKF, purporting to be an urban decay analysis, was submitted. It was not part of the public submission to REGENTS, GB-3, and was not made available to the public during the public comment period. Petitioners contend that the PKF letter and its companion traffic study must be made available to the public for review in a recirculated EIR. _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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Committee that the EIR be certified. PETITIONER contends that the EIR must be re-

circulated for public review and comment with the following studies included: (i) A September 7, 2012, letter from PKF purporting to be an urban decay

3 4

analysis; and (ii) A traffic study by Iteris dated September 6, 2012. 17. REGENTS went out of

5 6

its way to deny or delay PETITIONER access to documents sought under valid

California Public Records’ Requests so that PETITIONER could be afforded a

meaningful opportunity to comment upon the project’s substantial adverse

environmental effects, including, but not limited to potential for urban decay stemming

from the local hotels’ loss of substantial business to the LUSKIN CONFERENCE AND

GUEST CENTER as documented in the 2009 PKF Study18 and new traffic studies

submitted to REGENTS between September 7, 2012, and September 11, 2012; i. Because REGENTS operation of a commercial hotel, as opposed to a stand-

13 14

alone academic conference center, lies outside its exempt (public trust) purpose of

teaching and research, and will not be used solely for educational purposes, the

LUSKIN CONFERENCE AND GUEST CENTER constitutes an unlawful auxiliary

enterprise by application of the REGENTS own policies (UCOP-BUS 72, UCOP BUS-

A-59, and the other policies set out in ¶15, below), and is therefore not exempt from the

19 20 17

Petitioner only learned of these studies and documents in response to FEIR comments through Public Records Act Request No. 2012-661, dated July 9, 2012 and received January 31, 2013, long after the initial filing of this Petition, where the secret new study was ‘buried’ at pages 196-256 within the documents provided in the public records request

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PKF stated that “40 percent of accommodated conference and group demand is estimated to come from non-University sources, the majority of which are now accommodated in the competitive local hotel and competitive conference center markets.” (PKF, 2009, p. V-12). (Emphasis Added). The September 7, 2012 letter from PKF did not refute this earlier statement. A May 12, 2009, UCLA Presentation on campus demand for a contemplated hotel concluded that exclusively academic conferences would be seasonal and insufficient to enable the project to be economically viable in the absence of a broader commercial (and ultra vires) use, which would violate the mandate of UCOP-BUS 72 that patronage for the hotel be limited solely to academics (students, faculty, and staff) and not the general public, or only “incidentally” serve the general public. _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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zoning and land use laws of the City of Los Angeles.19 The requirement to obtain

separate entitlements from the City of Los Angeles is necessitated by the fact that (i) the

property on which the LUSKIN CONFERENCE AND GUEST CENTER is to be

constructed is zoned PF-1XL (Public Facilities), and the City’s General Plan, Westwood

Community Plan, the City’s West Los Angeles Transportation Improvement and

Mitigation Specific Plan and the implementing zoning regulations do not permit the use,

maintenance, or operation of a commercial hotel, public restaurant, or commercial

catering kitchen serving the public in the ‘PF’ zone.

3. Accordingly, Petitioner contends that respondent REGENTS abused its

discretion and is acting ultra vires in connection with the planning, construction, and

operation of the LUSKIN CONFERENCE AND GUEST CENTER. JURISDICTION

4. This Court has jurisdiction over this writ action pursuant to Public Resources

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Code §21168.5 of the Public Resources Code (as to First Cause of Action – CEQA

Violation); CCP §526a, CCP §1085; and §1094.5 (as to Second Cause of Action –

REGENTS Failure to Procure Required Land Use Entitlements From the City of Los

Angeles); CCP §1060 (Declaratory Relief).

THE PARTIES

5. Petitioner SAVE WESTWOOD VILLAGE is a California non-profit

corporation formed in 1997. It brings this action on its own behalf and on behalf of the

general public. Petitioner is an all-volunteer business-community alliance in the

Westwood and West Los Angeles area, and would be directly affected by the

development which is the subject of this Writ Petition. Petitioner’s mission is to promote

quality revitalization in Westwood Village and enhance the quality of life of the residents

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19Other

UC Hotels like the Estancia at UCSD or Hyatt Place at UC Davis are joint ventures or ground leases. Similarly, Cal Poly Pomona operates the Kellogg Center West Conference Center in conjunction with its hotel management school. UCLA does not have a hotel management school; nor does it offer a degree in Hotel Management. _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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of Westwood in part by encouraging responsible and lawful development of infill

properties located in Westwood and West Los Angeles. Petitioner’s attention and

resources are also directed to educating and informing the local residents about all

issues which impact their neighborhood including, but not limited to, local development

and environmental issues. Petitioner has successfully advocated for historic

preservation in Westwood, saved the Westwood municipal garage from sale by the City

of Los Angeles, and preserved the rights of Westwood Village property owners against

attempts to alter street easement property rights. Petitioner represents business owners

and taxpayers of the City of Los Angeles who will be adversely impacted by the acts,

decisions, and omissions of Respondent REGENTS OF THE UNIVERSITY OF

CALIFORNIA. PETITIONER and its members are taxpayers who within the last year

have paid state and local taxes. As such, both Petitioner and its members are aggrieved

and possess a beneficial interest in insuring that the decisions of Respondent

REGENTS OF THE UNIVERSITY OF CALIFORNIA be reversed and vacated.

6. Respondent REGENTS OF THE UNIVERSITY OF CALIFORNA is a

political subdivision of the State of California, who owns the subject property on which

the LUSKIN CONFERENCE AND GUEST CENTER is to be built and operated, and

who, under Article IX, § 9 of the California Constitution, is responsible, as public trustee,

for the operation of the public trust identified as ‘the University of California’ and its

campuses, including UCLA. In addition, REGENTS is also the lead agency under CEQA

charged with implementing its provisions, including the evaluation of all environmental

impacts from the project.

7. The true names and capacities of those parties named as DOES 1

through 20 are current unknown to Petitioners, who therefore name said Respondents

by their fictitious names. When their true names and identities have been ascertained,

Petitioners will amend this petition to allege the same. Petitioners are informed and

believe, and thereon allege, that each of these fictitiously named parties is responsible

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in some way for the acts and omissions herein alleged; and further that each of the

Respondents was and is the agent or employee of each of the remaining Respondents;

and in doing the things alleged was, at all times, acting within the scope of that agency,

employment, permission, and consent. THE PROPERTY

8. The real property which is the subject of this litigation is located on a 4.1

6 7

acre site within the boundaries of the UCLA campus on the northwest corner of

Westwood Plaza and Strathmore Drive in the Central Campus Zone. At the time of the

REGENTS consideration of the project, the property was improved with a 754 space

parking structure, denominated ‘Lot 6’, located adjacent to Pauley Pavilion. Despite the

pendency of this litigation, REGENTS have demolished the parking lot and have begun

construction of the project, despite the legal infirmities as alleged herein; and as such, is

proceeding at its own risk should the project approvals be overturned and the matter

remanded back to REGENTS with directions to comply with CEQA, with REGENTS

constitutional and fiduciary obligations as the trustee of the public trust known as the

University of California, and with its internal policies which carry the force of law. As

noted above, the property lies within the boundaries of the Westwood Community Plan

and the West Los Angeles Transportation and Improvement Mitigation Specific Plan,

and is zoned ‘PF-1XL (Public Facilities)20.

20 20

21 22 23 24 25 26 27 28

The Public Facilities Zone regulation (designation) is established to implement the various land use designations set out in the General Plan, the Westwood Community Plan and the West Los Angeles Transportation Improvement and Mitigation Plan of the City of Los Angeles. The ‘PF’ Zone is intended to regulate the use and development of publicly owned land within the City’s boundaries, to the extent permitted under law. Petitioner acknowledges that because Respondent REGENTS is a state entity under the California constitution, there are legal limitations on the extent to which the City can regulate land use on the UCLA campus where the property is being used in furtherance of the University’s core and sole mission, which is teaching, research, and public service. As noted in this writ petition, Petitioners contend that when UCLA seeks to own, operate, and maintain a commercial hotel open to the public, public restaurant, and commercial catering kitchen which provides catering services to the public, it has departed from its core mission and thereby loses its immunity from local regulation of its land use activities; that the REGENTS’ conduct in constructing and operating the LUSKIN CONFERERNCE AND GUEST CENTER because it is ultra vires and undermines rather than supports the University’s core mission; and accordingly, the University is precluded from making use of its shield to defeat or deflect against LA City’s right to review and entitle the project. _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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1 2 3

THE RELEVANT STATUTORY FRAMEWORK A. CALIFORNIA ENVIROMENTAL QUALITY ACT – CEQA 9. The California Environmental Quality Act (Public Resources Code §2100, et

seq.) is based on the principle that the “maintenance of a quality environment for the

people of this state now and in the future is a matter of statewide concern.” (Public

Resources Code §2100 (a)), and that it is the policy of this state to “take all action

necessary to protect, rehabilitate, and enhance the environmental quality of this state”

(id., §2100(a)). CEQA requires the assessment and public disclosure of potentially

adverse impacts that a project requiring a discretionary public agency approval might

10 11

have on the environment. (Id., §§ 21002, 21002.1.) 10. The fundamental goals of environmental review under CEQA are

information, participation, mitigation, and accountability. (Cal. Code Reg., Title 14,

§15002 (Lincoln Place Tenants Association vs. City of Los Angeles (2007) 155 Cal.

App. 4th 425, 443-444). CEQA requires an EIR whenever there is substantial evidence

supporting a fair argument that the proposed project may produce significant

environmental impacts. (Id., §21080(d)). An EIR must describe the proposed project

and its environmental setting, state the objectives sought to be achieved, identify and

analyze the significant effects on the environment, state how those impacts can be

mitigated or avoided, and identify alternatives to the project, among the requirements.

(Id., §§ 21100(b), 21151). The Advisory Agency (in this case REGENTS) must “provide

that measures to mitigate or avoid significant effects on the environment are fully

enforceable through permit conditions, agreements, or other measures that are feasible

and enforceable. (Id., § 21081.6(b)), and subject to a monitoring and reporting program

designed to ensure compliance. When “significant new information” comes to light

during the environmental review process, it must be added to the EIR, where such new

information can reasonably be said to have a significant impact on the environment and

27 28

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the public is deprived of a meaningful opportunity to comment. CEQA Guidelines

15088.5; Public Resources Code §21092.1

11. A discretionary project under CEQA is “an activity which may cause direct

physical change in the environment, or a reasonably foreseeable indirect physical

change in the environment.” (Id., §21065.) These activities include those that are

directly undertaken by a public agency as well as activities that are undertaken by a

“person which is supported, in whole or in part,” through financial or other assistance by

one or more public agencies. (Ibid.). At the heart of CEQA is the requirement that public

agencies may not approve projects “if there are feasible alternatives or feasible

mitigation measures available which would substantially lessen the significant

environmental effects of such projects. (Public Resources Code §21002).

12. Placing its trust in the judgment of public agencies, the Legislature has

made public agencies responsible for assessing the environmental effects of a project.

(See Id., §21080.1(a): “The lead agency shall be responsible for determining whether

an environmental impact report [“EIR”], a negative declaration, or a mitigated negative

declaration shall be required for any project which is” subject to CEQA. With this, the

Legislature has established a variety of method to accomplish its goals concerning

California’s environment, but the principal method is the drafting and completion of an

EIR. This report must be prepared if “there is substantial evidence, in light of the whole

record before the lead agency, that the project may have a significant effect on the

environment.” (Id.,§21080(d)).

13. In addition to those provisions found in the Public Resources Code, the

California Legislature has authorized and directed the Office of Planning and Research

to adopt guidelines for the implementation of CEQA (Cal. Code of Regulations, Title 14,

§§15000 et seq. (See Public Resources Code §21083). These guidelines are binding on

all state and local agencies, including REGENTS. (State Guidelines, §§15000, 15020.)

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In addition, REGENTS have adopted their own UC CEQA Handbook which imposes

additional requirements for UC CEQA compliance. 14. In order to effectuate ‘meaningful’ public review and comment of the

3 4

proposed project, the public agency must provide the public fair access to all

information and documentation relevant to the project. CEQA Guidelines §15088.5,

subd. a(4) (Mountain Lion Coalition vs. Fish and Game Commission (1989) 214 Cal.

App. 3d 1043). Petitioner contends this was not done in this case and that it was denied

the timely and fair production of relevant documentation needed for them to make

meaningful public comment on the Draft EIR, including, but not limited to all

documentation attendant to the serious public controversy concerning the project’s

potential to contribute to urban decay of the Westwood area 21

B. RELEVANT REGENTS’ POLICIES 15. REGENTS have established a number of policies intended and designed to

13 14

ensure that REGENTS lawfully carry out its fiduciary responsibilities as trustee of the

public trust to administer the public assets of the University of California, for the benefit

of the people of the State of California. Such policies carry the force of law. Those

policies relevant to the REGENTS’ actions in approving the LUSKIN CONFERENCE

AND GUEST CENTER PROJECT are as follows: a. UCOP BUS-72, “Establishment of Auxiliary Enterprises;”

19 20 21 22 23 24 25 26 27 28

Petitioner contends that not only were important and relevant Public Records’ requests denied, improperly deferred or delayed, there may have been serial meetings of Regent Board Members to discuss important matters related to the Luskin Commercial Hotel Project which violated the Brown Act (Government Code §54950, et seq.). These meetings were acknowledged at the beginning of the July 17, 2012 Regents Committee Hearing on the Luskin Conference and Guest Center by the Chairman of the Committee on Grounds and Buildings. Petitioner will undertake further discovery as part of this lawsuit in order to ferret out the specifics of this contention. Regardless, it is unlawful and an abuse of discretion for a lead agency to deprive the public of relevant information needed to fulfill its proper role in the CEQA process. In addition, the potential for urban decay was not analyzed by a historical demand for hotel rooms (FEIR p. 2-145). Rather, there was a study by PKF in 2009 which documented the fact that a number of guests would abandon local hotels in favor of the Luskin Conference and Guest Center. _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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1 2

b. UCOP BFB-A-59, “Costing and Working Capital for Auxiliary and Service Enterprises;”

c. UCOP BUS-55, “Determination of Financial Feasibility of Projects

d. UCOP A-56, “Academic Support Unit Costing and Billing Guidelines;”

e. Office of the Senior Vice President, Business and Finance, “Transportation

6 7

Systems and Parking Program Principles,” April 30, 2002; f. “Regulations Governing Conduct of Non-Affiliates in the Buildings and on

the Grounds of the University of California, “ Regents of the University of California, Title

V, Division 10, Chapter 1, Section 100001.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

16. In addition, REGENTS and the Office of the University President have established policies which govern and control the protocol attendant to the receipt and processing of gifts to the University and to the UCLA FOUNDATION. Those policies relevant to the Luskin Offer of Gift are as follows: a. Regents Standing Order 100.4(dd)(8) which mandates that REGENTS approve all gifts involving the construction of buildings for which no REGENT approval for funding has been given; and Regents Standing Order No. 100.4(dd)(1) which mandates REGENT approval of all gifts intended to fund activities or services which lie outside the scope of existing, approved University programs and policies (and the Luskin Offer of Gift, as modified by the Luskin letter of July 3, 2012 (see ¶2, page 6, above), lies outside the scope of approved University policies because the LUSKIN CONFERENCE AND GUEST CENTER constitutes an unlawful auxiliary enterprise which violates UCOP-BUS-72, UCOP BUS-A-59, and the other UC Operating policies noted in ¶15 of this Second Amended Petition); b. UC Development Policy Manual, Chapter I, §C.2 (“Environmental Impact Procedures and Fundraising Campaigns” (Spring, 1992) which reconfirms the need for REGENT approval of all gift offers which contemplate the construction of a building for

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which the REGENTS have neither approved the funding, nor the design 22; and Chapter

III; c. Chapter 9 of the UC Contract and Grant Manual (Office of the President –

3 4

University of California) issued March 23, 2006, and specifically §9-210 (defining the

authority of the President to solicit and accept gifts and precluding the President’s lack

of authority to accept gifts which require approval by the REGENTS; and further limiting

any power to accept gifts where REGENT approval is not required to gifts of $5 Million

and below); §9-410 (similar policies and limitations as regards acceptance of gifts made

or offered to Campus Foundations); and §9-610 (Acceptance of Gifts) which

specifically states that gifts accepted by individuals lacking the authority to do so

cannot be deemed to be lawfully enforceable obligations;23

12 13 14 15 16 17 18 19 20 21 22

The Section reads as follows: “Approval of a fundraising campaign permits the University to accept gifts that are irrevocable, both from the donor’s point of view and from the standpoint of charitable trust law. Because a court might reasonably hold that conducting a fund-raising campaign constitutes a commitment to proceed with a project in general, fundraising campaign authorization for a particular project should not be sought before completion of the environmental review process. Besides risking CEQA violations, the University also places itself in the position of soliciting gifts for a project that may be subsequently cancelled or so greatly modified that it no longer corresponds with the representation made to the donors.” (Emphasis Added). “If the Regents do approve a fundraising campaign before the final design has been approved, any gift solicitation made before final design approval should clearly inform the donors that the project is provisional and that CEQA review must be completed before a commitment to the project can be made.” (Emphasis Added). No such provisional or qualifying language appears in the Luskin Offer of Gift or in any purported ‘acceptance’. Petitioner contends that the absence of the ‘CEQA-sensitive’ provisional language mandated by this Regent policy is further evidence of Regents having pre-committed to the project as finally approved in violation of CEQA. 23

23 24 25 26 27 28

The relevant portion of §9-610 reads as follows: “Letters of Acknowledgment from persons other than those with delegated acceptance authority do not constitute legally recognized acceptance and should not state or imply that a gift has been accepted. Chancellors are responsible for establishing appropriate acceptance procedures for their campuses.” Therefore, the letter of “acceptance” from UC President Mark Yudof dated December 21, 2012 (two days before the Luskins ever made their Offer of Gift) was invalid for any purpose because it constituted an unlawful exercise of the power and authority possessed by the University President. The record is devoid of any evidence reflective of any formal approval of the Luskin Offer of Gift by Regents. Rather, these unlawful acts evidence a pre-commitment to the Luskin project and to the specific project site as improperly and unlawfully directed by the Luskins in violation of CEQA. No binding commitments could lawfully be made for a project whose CEQA review was pending. _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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d. UCLA Policy 192 effective May 4, 2006 entitled “Soliciting, Accepting, and

Returning Gifts” which limits the authority of the UCLA Vice Chancellor of External

Affairs to accept a gift offer to gifts of $1 Million or less;24 e. UC Delegated Authority No. 2011, “Delegation of Authority to Solicit and

4 5

Accept Gifts,” March 23, 1994. THE PROPOSED PROJECT & PROCEEDINGS

17. The proposed project consists of the construction and operation of a $162

7 8

million commercial hotel on the campus of UCLA consisting of an 8 story 294,000

gross square feet structure containing a public restaurant, 250 hotel rooms, a 25,000

square foot conference center (750 seat banquet hall), 25 and a commercial catering

operation. 91.5% of the project is slated for hotel use, while just 8.5% is to be set aside

for the conference center use. The funding for the project’s construction and operation

comes from three sources: (i) a $40 Million Offer of Gift to the UCLA Foundation from

MEYER LUSKIN and DOREEN LUSKIN for construction costs; (ii) the issuance of $80

Million in tax-exempt bonds (premised on the incorrect notion that the LUSKIN

CONFERENCE AND GUEST CENTER will not be a commercial business venture,

and (iii) $32 Million in taxable bonds, the repayment of which is supposed to come from

the operating income stemming from the hotel’s operations26, together with potential

19 24

The Luskin Offer of Gift ($100 Million in total) (Exhibit “A” to this Second Amended Writ Petition) was signed by a Vice-Chancellor purportedly on behalf of the UCLA Foundation; and also (amazingly) on behalf of the Regents. Petitioners allege that said individual lacked the authority to accept the Luskin Offer of Gift. Her having engaged in such unauthorized conduct was unlawful because it was contrary to established Regent policies and UC Procedures intended and designed to implement those policies. As such, at the time of the Regent approval of the project, there was (and still is) no binding commitment which the University can enforce against the Luskins with respect to their offer of gift because it was never lawfully accepted by Regents.

20 21 22

Indeed, the conference space was so limited that the Chairman of the Regents Grounds and Building Committee, a hotel developer, observed that it was hardly a conference center, but really, just a hotel ballroom (March 27, 2012).

27 28

The assumption that the LUSKIN CONFERENCE AND HOTEL PROJECT can be operated at a profit is problematic, and certainly one upon which greater openness, transparency, and discussion was and is required. _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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subsidies from other UCLA hotels such as the Lake Arrowhead Conference Center and

the UCLA Guest House. Also included within the parameters of the proposed project

was an amendment to the 2002 UCLA Long Range Development Plan (LRDP), as

amended in 2009, to transfer 255,000 gross square footage to the Central Campus

Zone, which amendment lacked any analysis of the environmental impacts of an

additional 5000 students enrolled at UCLA in excess of the enrollment contemplated in

the LRDP.27

18. On December 23, 2010, MEYER LUSKIN and DOREEN LUSKIN made a

written offer of a $40 Million gift to the UCLA Foundation (the “Luskin Offer of Gift”) to be

used to support “the construction costs associated with [what they generically described

as] the UCLA ‘Residential Conference Center’ [which would carry their name]”, together

with an added $10 Million to establish the “Luskin Endowment for Thought Leadership”

to create an endowment to support academic conferences, symposia, colloquia and

other academic events in the College of Letters and Sciences [together with] an annual

lecture to be known as The Luskin Lecture for Thought Leadership [to be given by a

distinguished individual in any field to be chosen by the Chancellor]”. 28 The Luskin Offer

17 18 19 20 21 22 23 24 25 26

The Long Range Development Plan (LRDP) is the master plan for the UCLA Campus. In order to generate consistency between the proposed Luskin Commercial Hotel Project and the LRDP, it was necessary to amend the LRDP to ‘transfer’ building density to the Central UCLA Campus Zone. While 255,000 square feet of building density was transferred to the Central Campus Zone as part of the CEQA analysis, an increased population density of 5,000 daytime students to the Campus was not analyzed. Petitioner contends that this omission was reflective of the Regents’ desire to avoid a meaningful analysis of CEQA-required cumulative impacts, and thus generate the kind of CEQA outcome needed so the Luskin Commercial Hotel Project could proceed. In short, it is further evidence of Regents having pre-committed to their desired outcome in violation of CEQA. Thus, by failing to amend the LRDP to reflect an increase of 5000 additional students on campus, Petitioner contends the Regents ‘gamed’ its own UCLA Master Plan and unlawfully prejudiced the outcome of the CEQA analysis, consistent with Regents desire and intent to pre-commit to the Luskin Commercial Hotel Project prior to having conducted and completed a competent, lawful, objective CEQA analysis. The LRDP is the functional equivalent of a General Plan Amendment. An increase from 35,000 to 40,000 students in one year is most assuredly a major impact on the campus and its surrounding community. That increase has never been analyzed. 28

27 28

This $50 Million grant was part of a total $100 Million grant by real parties, with the other $50 Million being directed to support the School of Public Affairs, as broken down in the Luskins’ December 23, 2010, letter to the UCLA Chancellor. (See Exhibit “A” attached hereto). _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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of Gift specifically stated that it was being made to advance the “UCLA mission of

research, education, and public service”. As such, the funds were not offered for

REGENTS’ use to develop a commercial hotel or to enable REGENTS to engage in

any other ultra vires activities inconsistent with REGENTS fiduciary duties to the people

of California under the Public Trust Doctrine, its Articles of Incorporation, its By-Laws, its

501(c)(3) charitable status, or its policies promulgated and to be applied consistent

therewith. A true and correct (redacted) copy of the Luskin Offer of Gift is attached

hereto as Exhibit “A” and incorporated herein by reference.

19. PETITIONER is informed and believes, and thereon alleges that the

foregoing December 23, 2010, $40 Million Luskin Offer of Gift was never formally

accepted by REGENTS or validly “accepted” by the UC President. Rather, it was signed

by the Vice-Chancellor for External Affairs who is also an executive Vice President of

the UCLA FOUNDATION. Petitioner contends that this individual lacked any authority

whatsoever under UCLA Policy 192 and Regents Standing Order Nos. 100.4(dd)(1) and

100.4(dd)(8) to “accept” the Luskin Offer of Gift on behalf of either the REGENTS, or the

UCLA FOUNDATION. Apart from the fact that the Luskin Offer of Gift was never

formally accepted by REGENTS, the bizarre circumstances attendant to the Luskin

Offer of Gift, which render it completely unenforceable by either REGENTS or the

UCLA FOUNDATION against the LUSKINS were and are as follows:

(i) The UC President’s purported “acceptance” of the Luskin Offer of Gift pre-

dated the date of the gift by two days, with the President’s purported “acceptance”

coming on December 21, 2012, when the Luskin Offer of Gift is dated December 23,

2012 (See Exhibit “B” hereto – Copy of Letter dated December 21, 2012, signed by UC

President Mark Udof to Chancellor Gene Block purporting to authorize ‘acceptance’ of

the Luskin Offer of Gift by the UCLA Foundation);

26 27 28

(ii) Under UC Policies (Regents Standing Order No. 100.4(dd)(1)(gifts involving exceptions to approved University programs and policies) and Regents Standing Order _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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No. 100.4(dd)(8) (gifts involving the construction of facilities not previously approved)

the UC President lacks the authority to accept offers of gifts of the size contemplated by

the Luskin Offer of Gift. This limitation on the President’s “gift acceptance” authority is

further confirmed by §9-210, §9-410, and §9-610 of the “Contract and Grant Manual”

promulgated by the Office of the UC President on March 23, 2006. Accordingly, the

Luskin Offer of Gift can only be lawfully accepted by REGENTS; a fact which, as

PETITIONER alleges, never occurred.

(iii) The Luskin Offer of Gift lacked the qualifying condition required under Section

C.2 of the University’s “Development Policy Manual” which directs that all gifts whose

use contemplates the construction of a project which is to be evaluated under CEQA

must contain a clear, unambiguous qualifying condition (either in the gift’s solicitation or

in its acceptance) that the gift is to be considered provisional until such time as (i) full

CEQA review of the project has been completed and (ii) REGENTS has formally

accepted and approved the project’s design. Petitioner contends that REGENTS

completely ignored the foregoing policy when dealing with the Luskin Offer of Gift by

approving the project’s financing before CEQA approval was given. PETITIONER

contends further that REGENTS failure to observe, honor, and follow its own policies in

its review, evaluation, and eventual approval of the LUSKIN CONFERENCE AND

GUEST CENTER violated CEQA because it reflected and evidenced REGENTS pre-

commitment to the project prior to the completion of the CEQA review process, thereby

undermining the ability of REGENTS to objectively evaluate alternatives which were

both financially and environmentally superior to the project which REGENTS approved,

and to maintain faith with REGENTS’ policies and fiduciary responsibilities as the

trustee of the trust assets (including the financial assets) of the University of California.

20. During the project’s evaluation process, it gradually “morphed” from an

academic conference facility into the development of a lavish commercial hotel, first on

the site of the UCLA Faculty Center in 2011, and subsequently, on Lot 6. PETITIONER

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contends that approval of the project’s financing prior to REGENTS approval of the

CEQA review and EIR was improper and violated CEQA because it represented a

piece-meal approval and a pre-commitment by REGENTS to the outcome of the CEQA

analysis. Under UC Policies and CEQA, PETITIONER alleges that CEQA review should

have come first. Instead, it was precisely the opposite, with university officials having

induced MEYER LUSKIN and DOREEN LUSKIN to write a letter in July, 2012,

“clarifying” their “initial vision” that their December 23, 2012, Offer of Gift was now to be

further conditioned upon the LUSKIN CONFERENCE AND GUEST CENTER being

constructed near the center of the UCLA campus on the Lot 6 site. PETITIONER

alleges that this “clarifying” letter from the LUSKINS was to influence REGENTS into

pre-committing to the project and the project’s location before the CEQA review process

had been completed; with the expectation that REGENTS’ pre-approval of the project’s

financing before CEQA review had been completed would generate enough momentum

and force behind the project so as to de facto “pre-determine” and “guarantee” the

outcome of a favorable CEQA review of the project on the Lot 6 site. This is further

evidenced by the fact that the foregoing letter from the Luskins came in response to the

dissatisfaction expressed by the members of REGENTS Grounds and Building

Committee in its meeting of March 27, 2012, of the project as presented; and the

Committee’s desire to put off a vote on the project until University officials investigated

less costly and economically risky alternatives, and then reported back to the

Committee on the results of its evaluation. The Luskin ‘”clarifying” (threatening) letter

was intended to deflect away from this request and thus “force” REGENTS into

accepting the proposed Lot 6 location for the project or lose the $40 Million Offer of

Gift.29 Had REGENTS followed their policies and procedures, the Luskins would have

25 29

26 27 28

So even though the $40 Million Offer of Gift was never formally accepted by Regents in advance of their CEQA determination (and thus not enforceable or binding on Regents), and otherwise violated Regents policies designed to avoid CEQA pre-commitment so as to ensure Regents at all times kept faith with their fiduciary duties under the public trust doctrine that the real property and financial trust assets of the University not be “privatized” or “commercialized”, but rather fully maintained for the trust purposes set _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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been made aware of the duty to follow CEQA and find environmentally and financially

superior alternatives. These policies are safeguards for donors and for the REGENTS

as trustees of the public trust, and as recipients of charitable trusts. These policies

were clearly adopted to avoid this very circumstance. 21. The DEIR (Draft Environmental Impact Report) was released on May 14,

5 6

2012, following which a public hearing was held on the DEIR on June 5, 2012. In

between, there were REGENTS’ Meetings as follows: (i) on March 27, 2012 (‘Grounds

and Buildings Committee to discuss the project and its financing – no vote was taken

pending a report-back on possible alternatives30), (ii) July 17, 2012 (Grounds and

Building Committee to discuss the project financing (first in closed session, then in

open session – Financing approved after receipt of the Luskin “clarifying letter”, but

before CEQA approval and before REGENTS formal acceptance of the Luskin Offer of

Gift – which never occurred), (iii) Committee on Grounds & Buildings meeting of

September 11, 2012 (to approve the Final EIR, the amendment to the LRDP (Long

Range Development Program) to transfer building density to the Central UCLA Campus

area, and approve the design. This meeting came after review and approval of the

project’s financing (despite the absence by REGENTS of any formal acceptance of the

Luskin Offer of Gift as required by REGENTS policies); followed by (iv) REGENTS

meeting (full Board) on September 12, 2012, approving the actions and

recommendation of the Grounds and Building Committee to approve the project.

21 22 23 24 25

out in the California Constitution (i.e. education, research, and public service), Regents acceded to the implied “Luskin” demands when they pre-committed to the financing before completing CEQA review. 30

26 27 28

The UCLA officials failed to provide any meaningful response to the Committee’s request. Instead, they solicited the Luskin ‘qualifying’ letter of July 12, 2012, which threatened to pull the gift if the Lot 6 alternative was not adopted which had the effect of (i) foreclosing a true evaluation of meaningful alternatives and (ii) pre-committing Regents to the desired outcome prior to the conclusion of an objective CEQA evaluation of the project. _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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22. Thereafter, on September 14, 2012, a Notice of Determination (dated

September 13, 2012) was filed with the State Clearing House in accordance with Public

Resources Code §21108 and §21152.

4 5 6 7 8 9 10 11

FIRST CAUSE OF ACTION AGAINST RESPONDENTS BOARD OF REGENTS & DOES 1 THROUGH 20 (CEQA VIOLATION) 23. Petitioners hereby refer to the allegations set out in Paragraphs 1 through 22 and incorporate the same herein by reference as though plead in full. 24. Petitioners bring this action to attack, set aside, void, and annul Respondents’ REGENTS approval of the project described herein. 25. In approving the subject project solely on the strength of the faulty and

deficient Environmental Impact Report (EIR), Respondent REGENTS failed to make

decisions supported by substantial evidence and to comply with CEQA and its

implementing regulations. In particular:

a. REGENTS pre-committed to the project before having completed a lawful

CEQA review which precluded an objective, unbiased review of environmentally and

financially superior alternatives;

18 19 20 21 22 23

b. No substantial evidence exists to support the conclusion reached that sufficient academic demand exists for the kind of limited, non-commercial, lawful auxiliary hotel services contemplated by the project which, to be considered lawful, can only serve UCLA faculty, students, and staff (not the general public) (except “incidentally”), as contemplated and required by (i) UCOP-BUS 72 which defines the very limited extent to which lawful auxiliary (commercial) enterprises are permitted on

24 UC Campuses; and (ii) UCOP A-59 (which sets out the guidelines and protocol to be 25 26 27 28

used when determining the cost and financial resources to be used in creating and operating lawful auxiliary enterprises). _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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c. REGENTS’ have acted in contravention of their policies, their by-laws, their

Articles of Incorporation, their 501(c)(3) status, and their fiduciary duties as the

constitutionally designated Trustee of the public trust identified in Article IX, §9(a) of the

California Constitution by approving a large commercial hotel complex and public

restaurant for use primarily by the general public and only “incidentally” by faculty,

students, and staff;31

7 8

d. REGENTS have violated CEQA for the reasons set out in Paragraphs 1 and 2, above.

9 10 11 12

26. In deciding to undertake the actions set for in the preceding paragraphs, REGENTS has acted in excess of its jurisdiction and has committed a prejudicial abuse of discretion by rendering an approval for the project which is not supported by substantial evidence, and in approving the project, has acted in a manner which is ultra

13 vires, in violation of its fiduciary duties under the Public Trust Doctrine, and in violation 14 15 16

of REGENTS’ own policies and procedures designed and intended to respect the Public Trust Doctrine and not obviate REGENTS fiduciary responsibilities under it. 27. PETITIONER has a direct financial and beneficial interest in the action

17 18 19 20 21 22 23 24 25 26 27 28

herein and brings this action as a private attorney general pursuant to Code of Civil 31

UCLA’s current operation of a public catering service is ultra vires and a misuse and abuse of public trust assets because its operation is not limited to uses which can reasonably be said to be ‘incidental’ to the educational and research services as mandated by UCOP – BUS 72. The public trust doctrine requires that all such services are to be limited to students, faculty, and staff of the University, and only “incidentally” service the general public. The circumstance here involving the Luskin project is precisely the opposite in that the Luskin Conference and Guest Center primarily serves the general public, and only “incidentally” serves the students, faculty, and staff of the University. Providing and promoting broadbased commercial catering services to the general public; operating a restaurant open to the general public; and operating a commercial hotel whose very economic viability rests on being able to provide hotel services to the general public is not a permissible auxiliary activity; and therefore violates the public trust doctrine and the UC policies put in place to ensure Regents not violate their fiduciary duties to the public under the public trust doctrine. The fact that the UCLA Catering website advertises its public catering services at the following website address: http://www.uclacatering.com/plan/event-spaces/. with an address that ends in “.com” rather than “.edu”. further reflects the public, commercial nature of UCLA’S hotel and catering operations. In addition, UCLA Conference Services advertises on several commercial online conference planning sites as www.uniqueventures.com; www.eventective.com; www.smartmeetings.com. Its hotels are listed on commercial hotel reservation sites. (See Exhibit “C” hereto). _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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Procedure §1021.5 to vindicate their own interests and those of the taxpayers and

citizens of the City of Los Angeles in the implementation of the State’s environmental

and land use laws.

4 5 6

28. PETITIONER will suffer irreparable injury and damages if the decision of Respondent REGENTS is allowed to stand. 29. PETITIONER has no administrative remedy, or are excused from

exhausting its remedies as a result of the futility of pursing such remedies, among other

things, and as such, has no plain, speedy, or adequate remedy in the ordinary course of

law to compel Respondents to comply with CEQA, and to otherwise act in accordance

with the law. The only remedy provided by law for Petitioners to obtain relief is this

Petition for Writ of Mandate pursuant to California Code of Civil Procedure §1094.5

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SECOND CAUSE OF ACTION AGAINST RESPONDENTS REGENTS OF THE STATE OF CALIFORNIA & DOES 1 THROUGH 20 (Mandamus Relief Under Code of Civil Procedure §§ 1094.5 and 1085 & Injunctive Relief under CCP §526a – Luskin Conference, Hotel & Public Restaurant Project – Failure to Procure Land Entitlement Grants From City of Los Angeles) 30. PETITIONER hereby refers to the allegations set out in Paragraphs 1 through 29 and incorporate the same herein by reference as though plead in full. 31. Pursuant to Code of Civil Procedure §526a, this Court has jurisdiction to enjoin the construction of a public improvement project where the act of constructing said public improvement project is unlawful in whole or in part because the use of public funds to achieve such an unlawful object constitutes an unlawful expenditure and waste of public funds by a governmental entity. Pursuant to Code of Civil Procedure §1085, this Court has jurisdiction to compel REGENTS to perform the mandatory duties attendant to its operation of the public trust known as the “University of California”. This public trust is expressly established as such in the California Constitution in Article IX, §9. Pursuant to Code of Civil Procedure §1094.5, this Court also possesses the

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jurisdiction to inquire into the finality of REGENTS decision to approve the LUSKIN

CONFERENCE AND GUEST CENTER.

32. PETITIONER alleges that the LUSKIN CONFERENCE AND GUEST

CENTER PROJECT constitutes an unlawful auxiliary activity which is ultra vires by

virtue of the following facts:

a. REGENTS are not permitted to construct, own, or operate a broad-based

commercial hotel, public restaurant, or public catering facilities open to the general

public. Under UCOP (University of California Operating Policy) BUS-72, “auxiliary

enterprises” can only be maintained and conducted “primarily” for the convenience of

University students, faculty and staff. Such enterprises may “only incidentally” serve

members of the general public. As constituted, the LUSKIN CONFERENCE AND

GUEST CENTER, according to the documentation provided to REGENTS, will have at

least 60% of its hotel guests as non-academics who fall outside the category of

‘students, faculty, and staff’. The estimates upon which the project’s approval was

premised also have at least 60% of the conference use being composed of non-

academic groups or individuals who fall outside the category of students, faculty, or

staff. UCLA maintains no hotel management department or degree program;

b. Because the general public cannot lawfully make use of the hotel, conference

facilities, public restaurant, or public catering facilities, REGENTS cannot possibly

comply with the mandate of UCOP A-59 which directs that any (lawful) auxiliary

enterprise operate profitably, with ‘profit’ being defined as the level where revenues

exceed direct and indirect costs, lawfully incurred. In order for the LUSKIN

CONFERENCE AND GUEST CENTER to operate lawfully, the payment of Transient

Occupancy Taxes (TOT) to the City of Los Angeles must be taken into account, as well

as the payment of UBIT (Unrelated Business Income Taxes) to the IRS. REGENTS

failure to consider or include the payment of such TOT taxes to the City of Los Angeles,

or UBIT taxes to the IRS also violated UCOP-55 which requires that projects requiring

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loan financing (as the LUSKIN CONFERENCE AND GUEST CENTER does) include all

cost components attendant to its operation; demonstrate that the project is economically

feasible and viable; that its relationship to student programs and campus academic

plans be clearly documented and substantiated; and that its impact on the community

be evaluated so that to the extent lawful, the University can assume its Fair Share of the

environmental and economic burden the project will have on the adjacent community (in

this case, the surrounding Westwood community specifically, and the City of Los

Angeles generally). Because opening up the use of the hotel and conference center to

the use of the general public results in the unlawful “privatizing” of assets owned and

maintained by the University, REGENTS fiduciary duties to the public under the Public

Trust Doctrine are violated; as are REGENTS By-Laws, Articles, of Incorporation,

501(c)(3) charitable tax status, and the attendant policies created to implement

REGENTS fiduciary duties as Trustee of the University’s assets. Under its Articles of

Incorporation and By-Laws, and the Article IX, §9 of the California Constitution,

REGENTS’ powers and duties are strictly limited to the provision of educational

services, research, and public service. The “privatizing” of public assets into

commercial enterprises goes beyond this authority. While REGENTS have discretion in

the application of its policies, which have the force of law, REGENTS are required to

consider such issues such as the impact of the payment of taxes on the economic

viability of the LUSKIN CONFERENCE AND GUEST CENTER PROJECT and the

impact of lost parking spaces under UCLA’s buy-out policy. REGENTS have a

ministerial duty to affirmatively consider and decide these issues and make specific

findings in support of the exemption claimed by REGENTS to its compliance with the

zoning laws of the City of Los Angeles. REGENTS failed to do so in this case;

c. Other specific evidence of the “commercial” (and thus the unlawful) nature of

the project is reflected in the fact that the LUSKIN CONFERENCE AND GUEST

CENTER is currently being advertised to the general public as a potential future venue

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for weddings, bar mitzvahs, and to other social, military, religious, and fraternal groups

as a future public venue in which to have their activity. Attached hereto as Exhibit “C”

and incorporated herein by reference are true and correct copies of advertisements

placed by UCLA in travel publications designed to draw in commercial customers to

UCLA’s current conference center and ‘hotel’ venues; which publications also make a

specific reference to the LUSKIN CONFERENCE AND GUEST CENTER as a desirable

future venue for public functions and overnight stays. The PKF Study used by

REGENTS in support of the project stated that the project is “expected to be

predominantly competitive for demand related to UCLA and corporate, association, and

social conferences and other meetings in the region.” Thus, REGENTS objective was to

compete with local hotels for non-academic business and otherwise provide commercial

hotel and commercial catering services to the general public. This objective directly

contravenes the limitations on what constitutes a ‘lawful’ ‘auxiliary enterprise’ (or

activity) under UCOP-BUS 72 because the level of the commercial hotel, public

restaurant, and catering services to be offered far exceeds that which can objectively or

reasonably be deemed to be “incidental”32. 33. PETITIONER further affirmatively alleges that further evidence of REGENTS

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ultra vires conduct and violation of its policies is reflected by the following facts: a. REGENTS failed to formally approve Luskin Gift as required by Standing

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Order Nos. 100.4(dd)(1) and 100.4(dd)(8); b. The University President’s approval of the Luskin Offer of Gift was ultra

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vires because under Standing Order Nos. 100.4(dd)(1) and 100.4(dd)(8), only

REGENTS are possessed of the right, power, and authority to approve and accept the

Luskin Offer of Gift;

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PKF did a study of potential conference center use as part of its work-up on REGENTS’ behalf. PKF reported that “Many functions that survey responders and interviewees described as ‘conference’ were one-day functions for which a small minority, if any, attendees required overnight lodging. (PKF Study dated July 24, 2009, Page V-1. (Emphasis Added). _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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c. The Luskin Offer of Gift, purported to be signed on behalf REGENTS was

executed by an individual lacking the right, power, and authority to act on behalf of

REGENTS because it violated UCLA Policy 192 which precludes the Vice-Chancellor

for External Affairs from accepting any offer of gift on behalf of REGENTS or the UCLA

FOUNDATION which exceeds $1,000,000;

d. REGENTS failed to consider whether the LUSKIN CONFERENCE AND

GUEST CENTER was truly a lawful auxiliary enterprise under UCOP-72, and failed to

make ‘Findings’ in support thereof; and

e. PETITIONER affirmatively alleges that REGENTS completely failed to

consider and apply the following REGENTS policies which have the force of law:

UCOP-72 (“Establishment of Auxiliary Enterprises”); UCOP BFB-A-61 (“Unrelated

Business Income and Expenses”); UCOP A-59 (“Costing and Working Capital for

Auxiliary and Service Enterprises”); UCOP-A-56.H (“Academic Support Unit Costing

and Billing Guidelines”); UCOP BUS 55 (“Determination of Financial Feasibility of

Projects Requiring Loan Financing”). Had REGENTS applied these policies, the fact

that the LUSKIN CONFERENCE AND GUEST CENTER would constitute an unlawful

auxiliary enterprise would have been made clear; and the unlawfulness of REGENTS

proceeding with the project, as proposed, would have been self-evident because of the

lack of the project’s economic viability when the use is limited to only faculty, students,

and the staff of the University.

34. PETITIONERS allege that a waste and unlawful gift or transfer of public

funds will occur unless RESPONDENT REGENTS is directed to fulfill its duties and

responsibilities (i) to ensure that no gift of public funds is made to subsidize an ultra

vires auxiliary commercial enterprise, (ii) to follow all of the non-discretionary, ministerial

and mandatory procedures and protocol which control and circumscribe the evaluation

of the LUSKIN CONFERENCE AND GUEST CENTER and (iii) to ensure that the

operation of the LUSKIN CONFERENCE AND GUEST CENTER would not jeopardize

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REGENTS’ tax exempt status. No amount of monetary damages or other legal remedy

can adequately compensate PETITIONERS for the misapplication and misappropriation

of funds which would occur in such a circumstance. Accordingly, it is appropriate for this

Court to issue a prohibitory injunction to restrain REGENTS from causing any monies to

be expended on the LUSKIN CONFERENCE AND GUEST CENTER unless and until

REGENTS have procured the appropriate land use entitlements from the City of Los

Angeles for the right to construct the LUSKIN CONFERENCE AND GUEST CENTER

on the UCLA Campus. .

35. PETITIONERS allege that REGENTS possess the ability to prevent UCLA

from engaging in the operation of a commercial hotel on the UCLA Campus by, among

other things, directing that there be a conference center with only incidental use by non-

members and the elimination of a hotel given that the application of the relevant UCOP

Policies would demonstrate that the operation of a hotel on the UCLA campus of the

type contemplated by the LUSKIN CONFERENCE AND GUEST CENTER is ultra vires

for the reasons cited above.

36. Under UCOP BUS 55, as part of its evaluation of the LUSKIN CONFER-

ENCE AND GUEST CENTER PROJECT on the local community, REGENTS had a

ministerial, non-discretionary duty to include the matters identified herein in the project’s

financial feasibility analysis and proposed budget as a legal prerequisite to REGENTS

being able to rely on its general exemption from local land use and zoning laws; and

that the failures, noted herein, subject REGENTS to the zoning and land use laws of the

City of Los Angeles. Specifically, in addition to the project’s being ultra vires, as alleged

above, PETITIONERS allege that in its evaluation of the LUSKIN CONFERENCE AND

GUEST CENTER PROJECT, REGENTS has completely failed to fulfill its mandatory,

non-discretionary duties as follows:

a. REGENTS failed to provide an analysis of the LUSKIN project’s impacts on

the local community, the project’s potential for competing with local Westwood hotels,

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and the project’s impact on the City’s infrastructure as required by UCOP BUS-

55.IV.A.6 and UCOP BUS-55.IV.8.c-d,k;

b. REGENTS failed to analyze the extent to which any non-university use of the

project would disqualify or undermine the project’s ability to rely on the use of tax-

exempt bond funding, and the corresponding ability of the Luskins’ to avail themselves

of a tax deduction for the sums ‘gifted’ to the UCLA FOUNDATION, as required by

UCOP BUS-55.IV.A.6 and UCOP BUS 55.IV.A.8.j;

37. REGENTS have a clear, present, and non-discretionary, ministerial duty to

refrain from violating state statutes, including its own regulations, or otherwise use or

expend public funds to effectuate unlawful objectives, and thereby cause a waste or

loss of public funds. REGENTS also have a mandatory, non-discretionary obligation to

follow UCOP BUS-72, UCOP BFB-A-61, and UCOP BUS-55 to first analyze the

competitive impact the LUSKIN CONFERENCE AND GUEST CENTER would have on

adjacent hotels in the Westwood area. REGENTS breached this mandatory duty by

failing to follow its own internal administrative processes and directives, as noted, by not

undertaking the analysis and reporting mandated by UCOP BUS-72, UCOP BFB-A-61,

UCOP BUS-55, and “University of California Transportation Systems and Parking

Program Principles”, dated April 17, 2002; and “Procedures for Identifying Unrelated

Business Activities Carried on at the University of California, Nonfinancial

Questionnaire”, dated November 4, 2011 (prepared by the UC Executive Vice-President

and Chief Financial Officer).

38. To the extent REGENTS did undertake a study and determination of the

impact the LUSKIN CONFERENCE AND GUEST CENTER would have on the local

hotels operating in Westwood, PETITIONERS contend that REGENTS abused its

discretion in that substantial evidence is lacking to support the REGENTS findings and

conclusion that the commercial hotel, public restaurant, and catering component of the

LUSKIN CONFERENCE AND GUEST CENTER would not adversely impact or impair

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the operations of the local hotels in Westwood; particularly with evidence in the record

from the Los Angeles Hotel Association and local businesses claiming they would be

harmed by the unfair competition deriving from UCLA’S failure to pay Transient

Occupancy Tax and the other taxes the competing hotels have to pay to the City of Los

Angeles; 39. PETITIONERS have a beneficial right to the REGENTS performance of its

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fiduciary duties to the public as Trustee of the public trust established in Article IX, §9 of

the California Constitution as the University of California. PETITIONERS lack any plain,

speedy, or adequate remedy in the ordinary course of law. 40. REGENTS have refused to rescind its decision to approve the LUSKIN

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CONFERENCE AND GUEST CENTER, and its failure to do so amounts to a prejudicial

abuse of discretion which merits the issuance of a mandatory injunction to compel

REGENTS to perform their duty to evaluate the true financial bona fides of the LUSKIN

CON-FERENCE AND GUEST CENTER in accordance with the mandatory business

procedures incorporated into the UCOP policies set out above, which policies for

purpose of this lawsuit, are the functional equivalent of state statutes.

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41. Unless the relief prayed for is granted, REGENTS will continue to conduct the taxpayer funded activities in an unlawful and wasteful manner

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duties noted above, the LUSKIN CONFERENCE AND GUEST CENTER will be a commercial hotel and public restaurant project which is ultra vires and thus requires that: a. Respondent REGENTS apply for and procure the requisite land use entitlements from the City of Los Angeles, which land use entitlements are necessitated by the fact that (i) the property on which the LUSKIN CONFERENCE AND GUEST CENTER is to be constructed is zoned PF-1XL (Public Facilities), and the City’s _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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General Plan, Westwood Community Plan, The West Los Angeles Transportation

Improvement and Mitigation Specific Plan, and the implementing zoning regulations do

not permit the use, maintenance, or operation of a commercial hotel in the ‘PF’ zone,

and (ii) the REGENTS operation of a commercial hotel lies outside its mission of

teaching and research;

b. Respondent REGENTS prepare an EIR for the City’s use in connection with

the same, which incorporates all major environmental impacts which would accrue as a

result of the REGENTS refusal and unwillingness to pay bed and occupancy taxes to

the City of Los Angeles on its commercial hotel operation in combination with other

hotels operated by UCLA on and off the campus, and the impact said failure would have

on the provision of emergency fire and police services and other infrastructure support

services provided by the City of Los Angeles to REGENTS, UCLA students, faculty,

patients and visitors.

43. PETITIONER further alleges that the EIR and Final Impact Report would not

suffice for the purposes of gaining the appropriate land use entitlements from the City of

Los Angeles for the reasons set out in ¶2 of this Second Amended Petition which are

incorporated herein by reference.

44. PETITIONER has a direct and beneficial interest in the action herein and

brings this action as a private attorney general pursuant to Code of Civil Procedure

Section 1021.5 to vindicate its own interests and those of its members who are

taxpayers and citizens of the City of Los Angeles in the proper implementation of the

environmental and land use laws; and this litigation, if successful, will result in the

enforcement of important rights affecting the public interest, including the public’s right

to compel the REGENTS to comply with State and local laws providing for the fair,

proper, and thorough implementation of the environmental and land use laws.

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45. In deciding to undertake the action set out in the preceding paragraphs, Respondents both erred and acted in excess of their jurisdiction and committed a _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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prejudicial abuse of discretion by not proceeding in the manner required by law in that

REGENTS were and are required to apply for and procure all requisite land use

entitlement approvals from the City of Los Angeles for the operation of the proposed

LUSKIN CONFERENCE AND GUEST CENTER on the UCLA Campus, and should be

made to do so.

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THIRD CAUSE OF ACTION AGAINST RESPONDENTS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA & DOES 1 THROUGH 20 (Declaratory Relief – Code of Civil Procedure § 1060) 46. Petitioner hereby refers to the allegations set out in Paragraphs 1 through 47 and incorporate the same herein by reference as though plead in full. 47. An actual and present controversy has arisen between Petitioner, on the one hand, and Respondents on the other, in that Petitioner contends and believes, for the reasons states herein, that Respondents’ actions in approving the project violated CEQA, the Public Trust Doctrine, its Articles of Incorporation, By-Laws, Standing Orders, Delegations of Authority, and policies, and the land use and zoning laws of the City of Los Angeles in that a construction and operation of a commercial hotel and public restaurant on the UCLA campus is not an activity in which REGENTS are permitted to engage, and that as a consequence, the REGENTS are required to procure the requisite land use entitlements from the City of Los Angeles as a condition precedent to constructing and operating the LUSKIN CONFERENCE AND GUEST CENTER, and that the City’s grant and approval of said entitlements is a legal prerequisite to the development and use of the subject property as a commercial hotel; and that REGENTS actions in developing and using the subject property as a commercial hotel without paying the requisite bed and occupancy taxes to the City of Los Angeles were and are unlawful, and that the REGENTS decision to approve the project must take into consideration the need to pay said taxes, and the failure of the decision approving the project to do so constituted an abuse of discretion. Petitioner is informed and believes, and thereon alleges that Respondents contend in all respects to _______________________________________________________________________ Second Amended Verified Petition For Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. – BS 138854

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the contrary. A judicial declaration is therefore necessary and appropriate to determine

the validity of Respondents’ actions as set forth above and the respective rights and

duties of the parties in light of the parties’ disparate contentions. PRAYER FOR RELIEF

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WHEREFORE, Petitioner respectfully prays for judgment as follows:

1. Issuance of a Writ of Mandate ordering Respondents THE REGENTS OF

THE UNIVERSITY OF CALIFORNIA to vacate, set aside, and rescind its decision

dated September 12, 2012, approving of the LUSKIN HOTEL PROJECT and, going

forward, to otherwise comply in all respects with CEQA, and to thereafter procure all

requisite land use entitlement approvals from the City of Los Angeles notwithstanding

that construction activities have commenced; that Respondent REGENTS OF THE

UNIVERSITY OF CALIFORNIA be required to amend its CEQA analysis in connection

with the project in order to take proper account of the need for a statement of overriding

considerations for fire protection service, revise the traffic and parking demand analysis,

incorporate an analysis of the business considerations attendant to the operation of a

commercial hotel on the UCLA Campus, including the requirement and the need to pay

occupancy and bed taxes to the CITY OF LOS ANGELES; confirm full compliance with

relevant UC Business policies in their CEQA evaluation of the project, so as to give due

and proper consideration to all conditions and factors which were never reviewed or

analyzed by the initial decision-maker in the first instance as regards the mitigation

conditions necessitated by the construction and operation of the LUSKIN

CONFERENCE AND GUEST CENTER, and to otherwise comply with the California

Environmental Quality Act;

2. On the Third Cause of Action for a Declaration and Judgment stating that

Respondents have failed to comply with their mandatory and ministerial duties under

the California Environmental Quality Act and the relevant Los Angeles City ordinances;

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SERVICE LIST

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AMRIT S. KULKARNI, ESQ. Meyers, Nave, Riback, Silver & Wilson 555 12th Street, Suite 1500 Oakland, California 94607 Telephone: (510) 808-2000 Facsimile: (510) 444-1108 Email: akulkarni@meyersnave.com Counsel for Respondent Regents of the University of California

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CHARLES F. ROBINSON, ESQ. KELLY L. DRUMM, ESQ. UNIVERSITY OF CALIFORNIA Office of the General Counsel 1111 Franklin Street, 8th Floor Oakland, California 94607 Telephone: (510) 987-9765 Facsimile: (510) 987-9757 Email: Kelly.drumm@ucop.edu Counsel for Respondent Regents of the University of California and Real Parties In Interest Meyer Luskin, Doreen Luskin, and UCLA Foundation

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_______________________________________________________________________ Proof of Service of Petitionerâ&#x20AC;&#x2122;s Second Amended Verified Petition for Writ of Mandate Save Westwood Village vs. Regents of the State of California, et al. - BS 139854