Sludge Watch ==> Adelanto versus Nursery Products - read the pleadings

maureen.reilly at sympatico.ca maureen.reilly at sympatico.ca
Sun Jul 31 16:42:47 EDT 2005


Nursery Products, owned by Jeff Meberg of San Clemente CALIF, has a facility 
in Adelanto that was supposed to close.  After many and repeated violations 
of the Conditional Use Permit, the City of Adelanto gave the company 
enforcement notices.  Nursery Products, which receives sewage sludge and 
some green waste at their Adelanto site, decided that this enforcement 
action was a violation of their civil liberties (!) and filed against the 
City of Adelanto in Federal Court (documents in Santa Ana, Calif).

They lost their case, but are now appealing it.

Nursery Products signed a Settlement Agreement agreeing to stop receiving 
sludge on July 1st, 2005 and stop composting by September 1st, 2005.  
However the sludge trucks continue to roll into the facility.

Neighbors to the site are choked with dust, odours, and flies.  Bizarrely 
enough, despite the ongoing violations of the Conditional Use Permit, and 
the history of odors and off site impact, the Dept of Environmental Health 
for San Bernardino staff, Dan Avera, has never cited the facility to be in 
violation or taken enforcement action.  When Nursery Products wanted to 
expand and take ten times more waste at the Adelanto site, Dan Avera, 
claiming that the odors were unacceptable, pulled the proposed permit off 
the agenda of the California Integrated Waste Management Board meeting 
October 2003.

Now Nursery Products wants to move to Newberry Springs east of Barstow 
California, and wants to take 10 times more sludge/waste than at Adelanto.  
This would make it one of the largest sludge disposal/'compost' sites in the 
United States.

Dan Avera seems to have once again forgotten his concerns about the 
operation with its odors, flies and neighbor complaints.  Here is the most 
recent press story about the facility...and some of the court documents.

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San Bernardino Sun

Saturday July 30, 2005

Sludge stirs legal fight

Composting challenged

By Andrew Silva, Staff Writer

The company that hopes to process human waste in Newberry Springs has
been locked in an acrimonious legal battle with the cities of Adelanto
and Los Angeles over allegations of flies, dust and odors at its current
site.

Nursery Products LLC has also violated a court settlement that prohibits
it from accepting waste after July 1 at its Adelanto location, and that
it be fully shut down and cleaned up by Sept. 1, Adelanto officials said
in court documents.

The city's chief code enforcement officer, Kevin Murphy, stated in court
papers that he saw sludge arriving at the facility on July 5.

The fight with Adelanto, where the company has operated a 40-acre
composting site since 2002, has been escalating at the same time the
company seeks approval from county government to move to a new location
about 25 miles east of Barstow.

The city will be in court next week seeking an injunction to force the
company to abide by its promise to stop accepting waste.

Sludge is the dark, gooey remains after sewage has been cleaned. After
it's composted, it is often used as agricultural fertilizer. The levels
of disease-causing organisms and toxic materials are periodically
checked by state and local regulators to ensure the material is safe.

"We do monthly inspections, and we've never taken an enforcement action
against them,' said Dan Avera, chief of environmental health services
for the San Bernardino County Department of Public Health.

The California Integrated Waste Management Board, which also has
regulatory authority, has never cited the project either.

Adelanto, however, did file two notices of violation last year, saying
the company had failed to abide by the conditions of the permit issued
by the city and that odors and flies are making life miserable for
residents.

Managing partner of Nursery Products Jeff Meberg declined to comment on
any of the legal action, including whether the site is still bringing in
material.

During a July 14 visit to the Adelanto site, Chris Seney, the operations
manager, explained the process for laying out sludge in 500-foot-long
piles, called windrows, where an enzyme is added to promote the
composting process.

In the middle of the site, a 23-foot-long, 7-foot-wide cylindrical
screen spun around, filtering the processed material just before being
shipped off to customers.

"I get inspected two to three times a month,' he said. "People think
it's unregulated. It's very regulated. That's how you kill all the
bacteria before it leaves.'

In the small portable office, powered only by solar panels, he displays
three-ring binders filled with detailed test results required by regulators.

The facility also accepts wood waste and Seney explained a truck
carrying a large blue roll-off bin was dropping off scrap wood from old
furniture. Later, that same morning, a tractor-trailer with a sludge
tank pulled onto the property.

While Adelanto has gone to court to push the company out, Newberry
Springs residents are up in arms trying to keep the company from arriving.

"It wasn't a well-thought-out plan to dump this sludge next to our
neighbors and near a (freeway) rest stop,' said Wesley Sperry, chairman
of the Newberry Springs Community Services District, which is fighting
the proposal.

Though the plan for the move had been moving somewhat routinely through
the county bureaucracy, it ran into a swarm of opposition from Newberry
Springs residents when it got to the county Planning Commission in June.

Commissioner Theresa Kwappenberg complained that the staff report on the
project was inadequate, especially since she had been made aware of the
Adelanto controversy and that Newberry Springs residents, including
Sperry, had submitted reams of documents in opposition.

After the commission held off on making a decision, the company agreed
to do a full environmental impact report, a more rigorous and lengthy
review than originally done by county planners.

On July 8, Adelanto filed suit against the company.

On July 12, the proposal landed in front of the county Board of
Supervisors, which had been asked to put the proposed Newberry Springs
site on a waste plan that must go to the state.

Several dozen residents showed up at the board meeting to object. The
hearing on the change, scheduled to resume on Tuesday, has been taken
off the agenda for now.

"On the surface, it appeared we were going to do that,' namely pave the
way for the project to be approved, 3rd District Supervisor Dennis
Hansberger said. "Tell us why we should be doing that when we haven't
approved it.'

The Los Angeles Department of Water and Power operates a 1 million-volt
electrical converting station across the road from the composting site
and has also filed legal action, alleging dust, flies and odors pose
both a health and safety hazard.

There have been flashovers, or uncontrolled electrical discharges, at
the plant, which operators there attribute to the dust generated by the
composting area, said Jonathan Diamond, a spokesman for the Los Angeles
City Attorney's Office.

Employees have also complained of thick carpets of flies, along with
nausea and allergic reactions, according to court filings.

"We believe the facility has a clear negative impact on the plant we've
got there,' he said.

In Adelanto, officials remain tight-lipped about the controversy.
Adelanto City Attorney Marguerite Battersby declined to comment.

Adelanto Councilman Scott McCauley also refused to say anything, and
other council members did not return messages left at City Hall.

Cathy Rodriguez, 32, lives about a mile south of the composting
facility, and has lived in her house for seven years.

"We have flies galore,' she said, saying it's difficult to have
barbecues during the day.

A county vector control expert, though, said in the spring that the
flies could be from somewhere else.


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MARGUERITE P. BATTERSBY (State Bar No. 115422)
CITY ATTORNEY
CITY OF ADELANTO
RICHARDS, WATSON & GERSHON
A Professional C01)oration
MITCHELL E. ABBOTT (State Bar No. 64990)
T. PETER PIERCE (State Bar No. 160408)
GINETTA L. GIOVtNCO (State Bar No. 227140)
355 South Grand Avenue, 40th Floor
Los AngeleS lifornia 90071-3101
Teleph(;me: 213) 626-8484
FacsImIle: ( 13) 626-0078
Exempt from Filig Fees
Pursuant to Govt. Code 6103
Attorneys for Plaintiffs
People of the State of California and City of A delan to
SUPERIOR COURT OF THE STATE OF CALIFORNIA
. COUNTY OF SAN BERNARDINO
VICTORVILLE DIVISION
PEOPLE OF THE STATE OF
CALIFORNIA; CITY OF ADELANTO
Plaintiffs
Case No. VCVVS038427
NOTICE OF MOTION
MOTION FOR PRELIMINARY
INJUNCTION; MEMORANDUM
OF POINTS AND AUTHORITIES
AND DECLARTIONS OF
KEVIN MURHY, MEL
DAVIS, DANIEL A. SARMIENTO,
MARIARITA SANTIAGO, ROBIN
BRASHAW, BRUCE
FOWLER, BRENDA KNOX
GRACE RICE, JOHN L. YOUN
AND MITCHELL E. ABBOTT Ir
SUPPORT THEREOF
NURSERY PRODUCTS, LLC;
JEFFREY P. MEBERG'
CHRISTOPHER M. SENEY; DOES
through 20 , inclusive
Defendants.
Hearing:
Time:
Dept. :
August 8 , 2005
8:30 a.

Hon. Stanford Reichert
Judge of the Superior Court)
Complaint Filed: July 8, 2005


TO DEFENDANTS AN TO THEIR ATTORNEYS OF RECORD
HEREIN:
PLEASE TAKE NOTICE that on August 8 2005 at 8:30 a. , or as soon
thereafter as the matter may be heard, in Department VI 0 of the 
above-entitled
Court, located at 14455 Civic Drive, Victorville, California, plaintiffs, 
People of
the State of California and City of Adelanto, will and do hereby move the 
court for
a preliminary injunction against defendants, Nursery Products, LLC, Jeffrey 
P.
Meberg, and Christopher M. Seney, and each and all of their agents, 
employees
representatives, officers, directors, and any and all persons acting in 
concert with
them, enjoining and restraining them, during the pendency of this action, 
from:
. 1. Receiving and processing green waste, bio-solids, or any other
organic material for compo sting at the real propert located at 16284 Aster 
Road
in the City of Adelanto ("subject propert"); and 2. Operating a compo sting 
facility at the subject propert on or after
September 1 , 2005.
This motion is made on the ground that the Nursery Products compo sting
facility constitutes a public nuisance as defined in Civil Code section 3480 
in that
persistent noxious odors emanate from the subject propert, persistent swarm
flies and other insects originating on the subject propert plague the 
surrounding
community, and the subject propert produces dust and airborne trash 
hazardous
to the surrounding community.
This motion is made on the alternative ground that defendants, by
continuing to receive and process green waste, bio-solids, or any other 
organic
material for compo sting, are in violation of the explicit terms of a 
Settlement
Agreement executed by plaintiffs and defendants in November 2004, which
expressly requires inter alia that defendants cease receiving and processing 
green
waste, bio-solids, or any other organic material for compo sting at the 
Adelanto
facility no later than July 1 , 2005.
Notice of Motion and Motion for Preliminar Injunction, Memorandum of Points 
and Authorities, and Declarations
12492\0029\827410.
This motion is based upon this notice and upon the attached memorandum
of points and authorities, supporting exhibits and declarations; upon all 
the
pleadings, papers, and records on file in this action, upon any matters as 
to which
the Court may take mandatory or permssive judicial notice, and upon the
argument of counsel and such other and further evidence as the Court may 
receive
at the time of the hearing on the motion.
WHEREFORE plaintiffs, the People of the State of California and the City
of Adelanto, pray that the motion for preliminary injunction be granted.
DATED: July 8, 2005 MARGUERITE P. BATTERSBY
CITY ATTORNEY
CITY OF ADELANTO
RICHAS, WATSON & GERSHON
A Professional Corporation
MITCHELL E. ABBOTT
T. PETER PIERCE
GINETTA L. GIOVINCO
By: /1 Mitc ell E. A ott
Attorneys for Plaintiffs
People of the State of California and
City of Adelanto
Notice of Motion and Motion for Preliminary Injunction, Memorandum of Points 
and Authorities, and Declarations

MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Plaintiffs, the People of the State of California and the City of Adelanto
seek a preliminary injunction prohibiting defendants, Nursery Products, LLC
Jeffrey P. Meberg, and Chrstopher M. Seney (hereinafter collectively 
referred to
as "defendants ), from receiving and processing treated human sewage sludge
lawn clippings and other so-called "green waste " and other organic 
materials at
their compo sting facility in the City. As the numerous attached 
declarations from
area residents attest, the compo sting process generates a foul stench 
permeating
the community, and generates thousands of flies plaguing homes, schools, and
automobiles. Only an injunction can remedy the daily harm inflicted by the
compo sting facility upon the surounding residents and businesses.
This is not the first time the parties have gone to court. An earlier 
federal
court civil rights action resulted in a summary judgment in favor of the 
City of
Adelanto. (Nursery Products, LLC v. City of Adelanto , C.D. Cal.
Docket No. SACV 03- 1622-GLT (ANx)). A subsequent appeal by Nursery
Products to the Ninth Circuit was abandoned when the parties entered into a
Settlement Agreement, a tre and correct copy of which is attached here as 
Exhibit
. (Declaration of Mitchell E. Abbott at 2).
The Settlement Agreement sets forth the background facts relating to the
disputes between the City and Nursery Products, and the City wil refer to it 
in this
introductory statement of facts. Nursery Products, LLC owns and operates a
compo sting facility located at 16284 Aster Road in the City of Adelanto. 
(Ex. A
p. 1 I1.A). The facility consists of approximately 40 acres of flat, graded 
land, a
trailer with offices, and various pieces of earth-moving equipment. (Ex. A, 
p. 1
II.A). The facility receives and processes both "green-waste" (grass 
clippings
Notice of Motion and Motion for Preliminar Injunction, Memorandum of Points 
and Authorities, and
wood chips, and similar materials) and "bio-solids" (treated domestic sewage
sludge). (Ex. A, p. 1 , I1.A). The materials are mixed and treated with a 
chemical
enze, and then piled in 10-foot high windrows in the open air. After
approximately 60 days of processing at the facility, the finished compost 
product
is sold as agrcultural fertilizer. (Ex. A, p. 1 , I1.A).
Compo sting operations on the subject propert began in early 2003. Later
that same year, Nursery Products applied to the California Integrated Waste
Management Board ("CIWMB") for an expanded solid waste facilities permt that
would allow it to increase by nearly 700 percent the amount of material 
composted
annually. (Ex. A, pp. 1- , ILC). The City expressed concerns to the CIWMB
about expanding the capacity of the facility, and about the impact of an 
expanded
operation on the community. (Ex. A, pp. 1- , , I1.C). The City' s exercise 
of its
rights in expressing its concerns to CIWMB trggered the filing of the 
federal
court civil rights action by Nursery Products, described above.
The Settlement Agreement contains the following two provisions relating to
the shut-down of the Nursery Products facility:
1. Nursery Products and Meberg shall, on or before July I
2005, cease and desist from receiving and processing green waste
bio-solids, or any other organic material for compo sting at the
Composting Facility located at 16284 Aster Road in the City of
Adelanto.
2. Nursery Products and Meberg shall, on or before
September 1 2005, permanently cease and desist from conducting
compo sting activities at 16284 Aster Road in the City of Adelanto.
(Ex. A, p. 3
, "
II1.A. l & 2).
As appears more particularly from the attached declaration of Kevin
Murphy, Code Enforcement Officer for the City of Adelanto, trucks have been
observed delivering (and dumping) sewage sludge and other organic material 
at

the Nursery Products facility after the July 1 2005 cut-off date. Indeed, on 
July 5
2005, defendant Chrstopher M. Seney, general manager of the composting
operation, told the City' s Code Enforcement Officer, Kevin Murhy, that 
Nursery
Products planned to continue to engage in business as usual and did not plan 
to
stop receiving shipments as required by the Settlement Agreement. 
(Declaration
of Kevin Murphy, 8). Significantly, just two weeks ago, Nursery Products
represented to the City in wrting on June 21 2005 that it would stop 
receiving
waste and bio-solids on July 2005. (Ex. B; Declaration of Mitchell E. Abbott 
at
3).
Given defendants' continued acceptance of shipments of sewage sludge , in
direct violation of the express terms of the Settlement Agreement and in the 
face
of wrtten assurance to the contrary, there is no reason to believe that 
defendants
will voluntarly comply with any of the terms of the Settlement Agreement. 
The
City thus seeks a preliminary injunction requiring defendants to cease 
accepting
shipments ofbiosolids and other organic materials immediately, and to cease 
all
composting activities and operations as of September 1 2005.
As discussed more fully below, the courts evaluate two factors in deciding
whether to issue a preliminary injunction: (1) the likelihood that the 
plaintiffs
ultimately will prevail on the merits of their complaint, and (2) the 
comparative
consequences to the parties of issuing or not issuing the injunction.
The numerous declarations from local residents attached hereto demonstrate
incontrovertably that the Nursery Products composting facility constitutes a 
public
nuisance, and there is thus a strong likelihood that the City will prevail 
on the
merits of its public nuisance claim. The declarations show that the compo 
sting
facility is a public nuisance as defined in Civil Code section 3480. The 
pervasive
and noxious odor emanating from the facility is the paradigmatic public 
nuisance.
The thousands of flies attracted by the composting operations and then 
inflicted on
the surrounding community are a separate and aggravating aspect of the 
nuisance.

Turing to the breach of contract claim, the declaration of Kevin Murphy
demonstrates conclusively that defendants Nursery Products and Meberg have
breached the terms of the Settlement Agreement by continuing to accept 
shipments
ofbio-solids and other organic waste after the July 1 2005 shut-off date.
The comparative consequences to the parties of granting or denying the
injunction - some courts refer to this factor as the "balancing of harms" - 
weighs
heavily in favor of granting the injunction. The har to the City of not 
granting
the injunction is the continued stench and attendant flies that are being 
inflicted on
the surrounding community. Bluntly stated, the foul odors and swarms of 
flies
originating at the compo sting facility are directly and materially 
interfering with
the lives of City residents. People cannot enjoy barbecues with their 
families or
other outdoor activities at their homes. Children cannot participate in 
athletic
activities at public parks when the wind is blowing the wrong way. Thousands
flies congregate on the screens and walls of homes and schools - people must 
race
through doors to keep the flies from coming inside. Local elementary school
children have complained of nausea, vomiting, eye irrtation, and difficulty
breathing when odors from the composting facility are particularly intense.
Furthermore, if a preliminary injunction is not granted, the City (and its 
residents)
will completely lose the benefit of the bargain it strck in the Settlement
Agreement as defendants continue their composting operation with impunity.
In sharp contrast, defendants will suffer no harm if the court grants the
injunction. An injunction would require defendants to do nothing more than 
what
they have already agreed to do - cease receiving and processing compo sting
materials forthwith and then stop compo sting operations altogether on 
September
2005.
For all of these reasons, the Court should issue a preliminary injunction as
requested.
PLAINTIFFS ARE ENTITLED TO A PRELIMINARY
INJUCTION REQUIRING DEFENDANTS TO STOP
RECEIVING AND PROCESSING COMPOSTING
MATERIALS.
The California Supreme Court has articulated the tral court' s task in
evaluating a request for prelimiary injunction as follows:
In deciding whether to issue a preliminary injunction, a trial cour
must evaluate two interrelated factors: (i) the likelihood that the part
seeking the injunction will ultimately prevail on the merits of his
claim, and (ii) the balance of harm presented, i. , the comparative
consequences of the issuance and nonissuance of the injunction.
Common Cause of California v. Bd. of Supervisors of Los Angeles County, 49
Ca1.3d 432 441-442 (1989).
The Court evaluates the two factors on a sliding scale, such that "if the 
par
seeking the injunction can make a sufficiently strong showing of likelihood 
of
success on the merits, the tral court has discretion to issue the injunction
notwithstanding that part's inability to show that the balance of harms tips 
in his
favor." 49 Ca1.3d 432 447. See also King v. Meese, 43 Ca1.3d 1217, 1227 
(1987)
the more likely it is that plaintiffs will ultimately prevail, the less 
severe must be
the harm that they allege will occur if the injunction does not issue

Plaintiffs Are Likely to Prevail on the Merits of Their Claims

1. The Evidence Demonstrates That The Continued Processing Of
Materials For Composting Constitutes A Public Nuisance.
Civil Code Section 3480 defines a public nuisance as follows:

A public nuisance is one which affects at the same time an entire
community or neighborhood, or any considerable number of persons
although the extent of the annoyance or damage inflicted upon
individuals may be unequal."
Civil Code 9 348

The composting facility at issue here has had a severe and negative impact
upon a large number of people who live or work in the City of Adelanto. 
There is
no question that a foul stench emanates from the compo sting facility. (See
declarations of Kevin Murhy ( 3); Melva Davis ( 8); Mararta Santiago ( 5);
and John L. Young ( 3)). The stench permeates local schoolyards, many
residences, businesses, and recreational facilities to the extent it becomes
intolerable to stay outdoors (See declarations of Melva Davis ( 8); Daniel 
A.
Sarmento ( , 3 , 5); Mariarita Santiago ( , 11); Robin Bradshaw ( , 3);
Bruce W. Fowler ( 3); Brenda Knox ( 2); Grace Rice ( 3); and John L.
Young ( , 5)). At times, the stench is so strong that it causes illness, 
including
vomiting. (See declarations of Melva Davis ( , 8); Daniel A. Sarmento (
3); Mariarita Santiago ( 10); Brenda Knox ( 2); and Grace Rice ( 3)).
The compo sting facility has also generated or attracted thousands of flies
that have become a nuisance to children at school and on school buses, to
residents in their homes, and to employees at their places of business. (See
declarations of Melva Davis ( 3,4); Daniel A. Sarmento ( 4); Mariarita
Santiago ( 9); Bruce W. Fowler ( 2); Brenda Knox ( 2); Grace Rice ( 4);
and John L. Young ( 4)).
The widespread foul stench and the accompanying flies are paradigmatic
public nuisances. As shown by the numerous attached declarations, the stench 
and
flies interfere with the public health, comfort and convenience. See Venuto 
v.
Owens-Corning Fiberglass Corp. 22 Cal.App.3d 116, 123 (1971) (a "' public
nuisance ' comprehends an act. . . which interferes with the interests of 
the
community or the comfort and convenience of the general public and includes
interference with the public health, comfort and convenience. ) Conditions
similar to the stench and flies here historically haye been declared by 
cours to
constitute public nuisances. See Varjabedian v. City of Madera 20 Ca1.3d 285
289-91 (1977) (neighboring homeowners allowed to sue for public nuisance
caused by foul odors emanating from sewage treatment plant); Markey v. 
Danville
Warehouse Lumber, Inc. 119 Ca1.App.2d 1 (1953) (cement mixing plant that
produced excessive dirt and grt, and generated loud noises, was public 
nuisance);
Dean v. Powell Undertaking Co. 55 Ca1.App. 545 (1921) (funeral parlors
generating foul and noxious odors constituted public nuisance).
Public nuisances may be abated pursuant to legal action brought by a city
attorney in the name of the people of the State of California under Code of 
Civil
Procedure Section 731. Well-settled authority establishes that an injunction 
is an
appropriate remedy to abate a public nuisance. See, e. , City and County of 
San
Francisco v. Padilla 23 Ca1.App.3d 388, 401 (1972) (public nuisance "may be
enjoined by an action for injunction
);
City of Los Angeles v. Silver, 98
Ca1.App.3d 745 , 750 (1979) ("public nuisance (is) subject to abatement by
injunction
Based upon the evidence contained in the declarations before the cour
plaintiffs respectfully submit that the compo sting facility is a public 
nuisance and
there is a strong likelihood that plaintiffs will prevail on their first 
cause of action
for unlawful maintenance of a public nuisance. The court may issue a 
preliminary
injunction on this basis alone. See Common Cause of California v. Rd. of
Supervisors of Los Angeles County, 49 Ca1.3d 432 447 (1989) ("if the part
seeking the injunction can make a sufficiently strong showing of likelihood 
of
success on the merits, the tral court has discretion to issue the injunction
notwithstanding that part' s inability to show that the balance of harms 
tips in his
favor

2. The Evidence Clearly Shows that Defendants Nursery Products
and Jeff Meberg Have Breached the Settlement Agreement They
Entered Into with the City.
As noted in the Introduction, the Settlement Agreement executed by the
City and defendants Nursery Products and Jeff Meberg provides: ' 'Nursery
Products and Meberg shall, on or before July 1 2005, cease and desist from
receiving and processing green waste, bio-solids, or any other organic 
material for
compo sting at the Composting Facility located at 16284 Aster Road in the 
City of
Adelanto." (Ex. A, p. 1 II1.A. l).
The attached declaration of Kevin Murhy, Senior Code Enforcement
Officer for the City of Adelanto, establishes that Nursery Products and 
Meberg
have consistently breached the Settlement Agreement by continuing to receive
materials for compo sting, and by continuing to process those materials, all 
after
July 1 , 2005 (Declaration of Kevin Murhy at 8).
This Court properly may issue a preliminary injunction to prevent further
breach of the Settlement Agreement. Code of Civil Procedure Section 
526(a)(3)
provides that an injunction may be granted when "it appears, durng the 
litigation
that a part to the action is doing. . . some act in violation of the rights 
of another
part to the action respecting the subject of the action, and tending to 
render the
judgment ineffectual." (Code of Civil Procedure 9 526(a)(3)). The 
Declaration of
Kevin Murphy establishes that Nursery Products received shipments of sewage
sludge and other materials and allowed them to be dumped at the composting
facility on July 5 , 2005 after the July 1 2005 cut-off date. An injunction 
properly
may issue here.
Furthermore, the Settlement Agreement itself expressly provides that if a
part fails to perform any obligation under the agreement, the non-defaulting 
part
may file suit seeking injunctive relief to enforce the terms of this 
Settlement
Agreement. (Ex. A, p. 7 III.L) (emphasis added).

In Smith v. Mendonsa 108 Cal.App.2d 540 (1952), plaintiff and defendants
owned adjacent real propert. They entered into a wrtten agreement in which
defendants promised not to maintain on their propert any trees exceeding 15 
feet
in height. Defendants breached the agreement and the tral court issued an
injunction to enforce it. On appeal, defendants attacked the injunction, 
arguing
that the balance of hardships tipped in favor of denying injunctive relief 
(108
Cal.App.2d 540 543.) The Court of Appeal rejected this argument and affirmed
the injunction. The appellate court expressly held that injunctive relief is
appropriate to prevent the breach of a contract:
We think that the trial court acted within its discretion in granting
injunctive relief. These factors impel to that conclusion: The contract
itself is very clear; the promise made is definite; the purpose is
declared to be the prevention of the very damage which ensued when
that promise was broken. . . It is not the business of cours, either of
law or of equity, to remake contracts fairly entered into by persons
who are capable of contracting. On the contrary, it is the duty of
courts to encourage the keeping of agreements so made and to give
adequate remedy for the breach thereof when it occurs. This is
particularly tre where the breach is deliberate and the wrong wilful."
Smith v. Mendonsa 108 Cal.App.2d 540, 544 (1952).
Defendants Nursery Products and Jeff Meberg promised to stop receiving
and processing bio-solids and other organic matter for compo sting on or 
before
July 1 , 2005. Defendants have failed to keep their promise, and they 
continue to
violate the terms of the Settlement Agreement (See Declaration of Kevin 
Murphy
at 8). Indeed, the General Manager of the Nursery Products facility, 
Chrstopher
Seney, has flatly proclaimed his and his company s intention to continue 
receiving
bio-solids and processing them indefinitely. (See Declaration of Kevin 
Murphy at
9). This Court should issue a preliminary injunction that immediately 
prohibits

defendants from receiving and processing fuher shipments ofbio-solids and
other organic material.
Defendants may seek to resist a preliminar injunction by relying on Code
of Civil Procedure Section 526(b )(5), which provides that an injunction 
cannot be
granted to "prevent the breach of a contract the performance of which would 
not
be specifically enforced. There is no reason in law or logic why the 
Settlement
Agreement here "would not be specifically enforced." Settlement agreements 
are
routinely enforced by the courts. See, e.
g.,
Weddington Productions, Inc.
Flick 60 Cal.App.4th 793 (1998); Corkland v. Boscoe 156 Cal.App. 3d 989, 992
(1984). Ths is particularly so here, where the specific performance sought 
is
simply a prohibition on carrng on a certain business activity. The 
limitation on
injunctive relief in Section 526(b)(5) simply does not apply here.
Plaintiffs respectfully submit that defendants ' breach of the Settlement
Agreement provides a separate and independent ground for this Court to issue 
a
preliminary injunction requiring defendants Nursery Products and Meberg
forthwith to cease receiving and processing shipments ofbio-solids and other
organic material for compo sting at the Adelanto site.
The Balance Of Hardships To The Parties Strongly Favors
Granting The Injunction.
As noted above, the second part of the test for whether to issue a
preliminary injunction is to balance the hardship to the plaintiff of not 
granting the
requested injunction against the hardship to the defendants of granting the
injunction. Common Cause of California v. Bd. of Supervisors of Los Angeles
County, 49 Cal.3d 432, 441-42 (1989).
III

The Harm To Plaintif Would Be Substantial If the Injunction Were
Denied.
The multiple attached declarations of people who live and work in the City
of Adelanto demonstrate the substantial hardship that the public will 
continue to
endure if defendants Nursery Products and Meberg are not enjoined from
continuing to receive and process compo sting materials. Defendants ' compo 
sting
operation has caused physical illness in children and adults alike and has 
seriously
interfered with the normal daily activities of many Adelanto residents, and 
has
substantially impaired the use and enjoyment of their propert.
Defendants Will Not Suffer Any Appreciable Harm If the Injunction Is
Granted.
The hardship to defendant by the granting of the injunction must be greatly
disproportionate to the hardship caused plaintiff. . . and this fact must 
clearly
appear in the evidence and must be proved by the defendant." Posey v. 
Leavitt
229 Cal.App.3d 1236, 1248 (1991).
Given the severe hardship plaintiffs will endure if injunctive relief is 
denied
defendants cannot meet their burden of showing that they will endure far 
greater
hardship if an injunction iss es. In fact, defendants will not suffer any 
appreciable
hardship if a preliminary injunction issues: the requested injunction would
prohibit defendants from continuing to engage in activities that they were 
already
legally required to discontinue under the Settlement Agreement. A part 
cannot
claim hardship in being required to refrain from taking actions in which the 
part
has no legal right to engage in the first place.
Here, defendants here had no right to continue receiving and processing
composting materials beyond July 1 2005. Because the preliminary injunction
Notice of Motion and Motion for Preliminar Injunction, Memorandum of Points 
and Authorities, and
sought here will do nothing more than prohibit defendants from taking 
actions
which they have already agreed in wrting not to take, defendants certainly 
can
claim no harm if the injunction is granted.
In summary, plaintiffs will suffer far greater harm if a preliminary
injunction does not issue than defendants will suffer if the court issues a
preliminary injunction. That relative har, together with plaintiffs ' strong
likelihood of succeeding on the merits on both their first and second causes 
of
action, presents a compelling case for this Court to grant a preliminar 
injunction
requiring defendants immediately to stop receiving and processing composting
materials.
III.
PLAINTIFFS AR ALSO ENTITLED TO AN INJUCTION
REQilRING DEFENDANTS TO CEASE OPERATIONS
ALTOGETHER ON OR BEFORE SEPTEMBER 1, 2005.
The requirements of the Settlement Agreement are plain and unambiguous.
re has been no suggestion that defendants did not understand their 
obligations.
Indeed, just two weeks ago, Nursery Products stated, in wrting, that it 
"intends to
stop receiving waste and bio-solids at the Adelanto site on July 1 2005 and 
will
stop compo sting materials there on September 1 2005." (Exhibit B).
The evidence, however, shows that defendants do not keep their promises.
Accordingly, neither plaintiffs nor this Court should have any confidence
that defendants will voluntarily cease all of their compo sting operations 
on or
before September 1 , 2005. The preliminary injunction should also require
defendants to comply with the term of the Settlement Agreement mandating 
that
they permanently cease and desist from conducting compo sting activities at 
their
Adelanto facility on or before September 1 2005.
Notice of Motion and Motion for Preliminar Injunction, Memorandum of Points 
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IV.
CONCLUSION
For all of the foregoing reasons, the Court-should issue a preliminary
injunction enjoining and restraining defendants, during the pendency of this
action, from:
Receiving and processing green waste, bio-solids, or any other
organic material for compo sting at the real propert located at 16284 Aster 
Road
in the City of Adelanto; and 2. Operating a compo sting facility at the 
subject propert on or after
September 1 , 2005.
DATED: July 8, 2005 Respectfully submitted
MARGUERITE P. BATTERSBY
CITY ATTORNY
CITY OF ADELANTO
RICHAS, WATSON & GERSHON
A Professional C01)oration
MITCHELL E. ABBOTT
T. PETER PIERCE
GINETTA L. GIOVINCO
By: Itc e ott
Attorneys for Plaintiffs
People of the State of California
and City of Adelanto
DECLARTION OF KEVIN MURPHY
Kevin Murhy, hereby declare: 1. I am and all times material hereto have been 
the duly-appointed
Senior Code Enforcement Officer for the City of Adelanto, plaintiff in the 
aboveentitled
action. I have personal knowledge of the matters and facts set forth herein
and, if called as a witness, could and would testify competently thereto. 2. 
As Senior Code Enforcement Officer for the City of Adelanto, my job
responsibilities include monitoring and investigating complaints of nuisance 
and
violations of the Adelanto Municipal Code, interfacing with the propert 
owners
or others responsible for the problems, issuing notices of violations, 
citations and
if necessary, overseeing the filing of legal proceedings in the San 
Bernardino
County Superior Court to secure compliance. 3. I fIrst inspected the Nursery 
Products composting facility sometime
late in 2002 or early in 2003 , in response to complaints I had received 
concerning
odors and flies emanating from the facility. Since that time, I have 
received
numerous complaints from residents and workers in the City of Adelanto
concerning odors, flies, dust, and trash emanating from the Nursery Products
facility. I have visited the Nursery Products facility in response to these
complaints on more than 100 occasions, and on many of those occasions
experienced a foul odor emanating from the facility.
On November 5 2003, the City Council of the City of Adelanto
conducted a special meeting and heard testimony from a number of residents 
and
workers in the City concerning problems with the Nursery Products compo 
sting
facility. At the conclusion of that lengthy special meeting, the City 
Council
directed City staff to initiate code enforcement and nuisance abatement
proceedings against Nursery Products. 5. Shortly after this special City 
Council meeting, Nursery Products
Notice of Motion and Motion for Preliminary Injunction, Memorandum of Points 
and Authorities, and Declartions
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filed a civil rights action against the City of Adelanto in federal cour. 
Nursery
Products, LLC v. City of Adelanto , C.D. Cal. Docket No. SACV 03-
1622-GL T (ANx). After extensive depositions, document inspections, and 
other
pre-tral activity, the City moved for summary judgment on August 31 , 2005; 
the
motion was granted by District Judge Gary L. Taylor on September 21 2005, 
and
judgment was entered by the court on October 8 2005. 6. Nursery Products 
filed a notice of appeal from this judgment. While
the appeal was pending before the Ninth Circuit Cour of Appeals, the City 
and
Nursery Products entered into a Settlement Agreement which basically 
provided
that Nursery Products would cease compo sting operations at the subject 
propert.
A tre and correct copy of the signed Settlement Agreement is attached hereto 
as
Exhibit A and incorporated herein by this reference. 7. On June 21 2005, the 
attorney for Nursery Products, David G.
Hagopian, Esq. , assured the City Attorney, in wrting, that Nursery Products
would abide by the Settlement Agreement and would stop receiving waste and
bio-solids at the Adelanto facility on July 2005. A tre and correct copy of 
Mr.
Hagopian s June 21 , 2005 , letter is attached hereto as Exhibit B and 
incorporated
herein by this reference. 8. I visited the Nursery Products site on Tuesday, 
July 5 2005 and
observed operations from the public right-of-way adjacent to the facility.
Notwithstanding the Settlement Agreement and Mr. Hagopian s assurances, at
11:16 a. , I observed three semi-trcks and trailers hauling sewage sludge 
drve
onto the Nursery Products propert and unloading their cargo. After the 
sludge
was dumped, the semi-trcks and trailers drove out of the facility. I then 
observed
a loader "mixing" the sludge with other material. I have observed this 
process
many times in th past. 9. After observing the trcks make their deliveries on 
July 5 , I went onto
the Nursery Products site and spoke to defendant, Chrs Seney, known to me to 
be
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the general manager of the composting facility. I asked Mr. Seney if Nursery
Products was still accepting shipments ofbio-solids. Mr. Seney told me
, "
we are -
operating like we always have, no chage." Referrg to Nursery Products
President, Jeff Meberg, Mr. Seney then said, "Unless Jeff tells me otherwse
Nursery Products will continue acceptig shipments ofbio-solids.
10. Based upon my observations on July 5 2005, there has been no
change in the operation of the Nursery Products compostig facility.
I declare under penalty of perjur under the laws of the United States of
America that the foregoing is tre and correct.
Executed on July 2005.
DECLARTION OF MELVA DAVIS
, Melva Davis, hereby declare: 1. I was the Principal of Bradach Elementary 
School, located at 15550
Bellflower Street in the City of Adelanto, from 2001 until June 30, 2004. 
The
Bradach School had an enrollment of approximately 950 students from 
pre-school
through the eighth grade. From July 1 , 2004 until the present I have been 
the
Principal of Adelanto School, with an enrollment of approximately 600 
students
from kindergarten through the fifth grade. I have personal knowledge of the
matters and facts set forth herein and, if called as a witness, could and 
would
testify competently thereto. 2. The Bradach School is located about two 
miles southeast of the
Nursery Products compo sting facility at 16284 Aster Road. 3. In about the 
Spring of2003 , we began to notice on Monday mornings
after returning to Bradach School from the weekend, a black mass of 
thousands of
flies covering the exterior doors and windows of the school. The custodial 
staff
would tr to get rid of the flies by using spray bottles of Windex. We could 
not
use chemical insect repellents because of the children. 4. The massive 
influx of flies required us to leave all doors closed and
food covered in the cafeteria so that the food would remain edible for the 
children. 5. Also in about the Spring of2003, I began to notice a foul 
stench
wafting over the Bradach School. The stench was present on a daily basis 
until I
left the school on June 30, 2004, although some days were worse than others. 
On
some days, the stench was so foul that students playing outside complained 
of
stomach aches and headaches, and experienced vomiting. On those days, the
children were not able to do any kind of exercise outdoors. 6. School staff 
members also complained of experiencing the same
symptoms while supervising the children during outdoor recess.

7. After I left Bradach School and become Principal at Adelanto School
on July 1, 2004, I continued to notice the stench on a daily basis while at 
the
school. The stench persists until this day. The Adelanto School is 
approximately
one and a quarer to one and one-halfmiles from the Nursery Products 
facility. 8. I came to the conclusion that the foul odor was coming from the
Nursery Products facilty after I took a car ride in the Spring of2003 and
discovered tht the odor became more and more intense the closer I got to the
Nursery Products facility. The odor was so strong when the car approached 
the
facility that I vomited.
I declare under penalty of perjur under the laws of the State of California
that the foregoing is tre and correct.
Executed on June 30, 2005.
DECLARTION OF DANIEL A. SARMIENTO
, Daniel A. Sarmento, hereby declare:
1. I am and at all times since 1993 have been a resident of the City of
Adelanto. My home address is 17853 Stevens Street. I have personal knowledge
of the matters and facts set forth herein and, if called as a witness, could 
and
would testify competently thereto. 2. My home is located approximately two 
miles from the Nursery
Products compo sting facility at 16284 Aster Road. Since the Nursery 
Products
facility began operating in 2003 , my family and I have experienced 
extremely bad
odors coming from the compo sting facility. Sometimes the foul odors start
early as 3:00 a.m. or 4:00 a.m. in the morning, and they are so bad that we 
must
shut the windows in our home. The odors increase again in the late afternoon 
and
evenings, and make it impossible to enjoy barbecues or other outside 
activities at
our home.
My son, Daniel, is 12 years of age and participates in the Azteca
Soccer Club, a youth soccer organization that practices at Richardson Park, 
near
Adelanto City Hall. Since the composting facility began operations, my son 
has
complained of burning eyes, difficulty breathing, and nausea from the odors 
in the
air. Both my wife, Laura, and my son, Daniel, have experienced significantly
increased problems with allergies which we attrbute to the odors and air 
pollution
caused by Nursery Products. 4. The Nursery Products facility has also caused 
a huge amount of flies
which make it very unpleasant to go outside. The flies have been so thick 
that the
screen doors at our home are ' jet black." At one point, the flies and odors 
coming
from the compo sting facility seemed to have reduced somewhat, but for the 
past
month or so, these problems have been as bad as they ever were.
The Nursery Products facility has been a problem for our family since
Notice of Motion and Motion for Preliminar Injunction, Memorandum of Points 
and Authorities, and Declarations
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it opened. The odors and fles coming trom the composting facility are just
intolerable. My daughte, Ileana, 14 years of age, does not want to go 
outside
our home because of "the smell" from Nursery Products.
I declare under penalty of perjury under the laws of the State of Californa
that the foregoing is tre and correct.
Executed on June 30, 2005.


DECLARTION OF MAARTA SANTIAGO
, Mariarita Santiago, hereby declare: 1. I am and at all times since 1994 
have been a resident of the City of
Adelanto. My home address is 15324 Kearny Drive. I have personal knowledge
of the matters and facts set forth herein and, if called as a witness, could 
and
would testify competently thereto. 2. My home is located approximately three 
miles from the Nursery
Products compo sting facility at 16284 Aster Road. I live with my husband 
and
three children. 3. Beginning in mid-2003, when I was in my yard, I began to 
experience
a foul odor that resembled the smell of sewage. The odor was so pervasive 
that
my family and I could no longer sit on the bench of our front porch, which 
we had
done most evenings. 4. I have smelled the foul odor in my yard three or four 
days a week
since it began in mid-2003. My family and I like to leave the windows open, 
but
when the odor is present, we must close the windows and run the air 
conditioning.
Before the odor started, we would leave the windows open at night so the 
house
would cool. 5. My bank is very close to the location of the Nursery Products 
facility
in Adelanto. When I go to the bank and exit my car, the stench is very 
strong,
even stronger than that I experience at my house. 6. I am a school bus drver 
employed by the City of Adelanto. During
my daily runs, I notice the foul odor when I am downwind of the Nursery 
Products
facilty no matter where I am located in relation to the facility. 7. Also 
beginning in about mid-2003, I noticed huge swarm of flies in
my yard. The flies would rest on my plants and flowers immediately adjacent 
to
my front door and my family and I would have to run into the house after 
opening
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and Authorities, and Declarations
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the door so the flies would not follow us inside. Unforttely, we were not 
able
to prevent all of the flies from entering, and many flies came into the 
house and we
spent hour chasing them down and killing them. We would tr to trap the flies
between the windows and window screens so that we could minimize the use of
insect spray withn the house. 8. Often, during my bus runs to and from 
schools, many flies would
enter the bus though the windows and some of the children were bothered by 
the
presence of the flies. 9. After the flies began swaning at our house, 1 
noticed they would
land on the food we left outside for our dog. Our dog stopped eating the 
food and
became very thin and sick. In addition, the flies would bite our dog. He 
died in
October 2003.
10. When the odor is particularly strong, my sinuses flare up making it
diffcult to breathe through my nose. At times, the flare..up persists for 
two
thee days. Also, the strong odor has given me severe headaches that I never
experienced before the composting facility began operating. Sometimes, the
headaches last for an entire day.
II. Overall, the stench has forced us to stay at home more when we used
to paricipate in more recreational activities outside the house.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is tre and correct.
Executed on June 30, 2005.
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- Manarlta antI ago
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DECLARTION OF ROBIN BRASHAW
Robin Bradshaw, hereby declare: 1. I am and at all times since November 
2000, have been Safety Director
for CABO Yachts, Inc. , a manufactuer of recreational fiberglass yachts 
located at
9780 Rancho Road in the City of Adelanto. I have personal knowledge of the
matters and facts set forth herein and, if called as a witness, could and 
would
testify competently thereto.
CABO Yachts, Inc. , conducts its manufacturing operations in six
large buildings on a 10-acre campus, which is located approximately 1. 5 
miles
from the Nursery Products composting facility at 16284 Aster Road. My job as
Safety Director includes compliance with air and water permts, worker safety
programs and procedures, and overall responsibility for facility 
maintenance. The
Nursery Products composting facility has been a public nuisance due to 
extremely
strong and unpleasant odors. The odors seem to be strongest in the early 
mornings
and late afternoons, and on occasions when the wind blows from the 
southeast.
CABO Yachts, Inc. , employs 530 people at the Adelanto plant. I
have had many complaints from our workers regarding the odors from Nursery
Products, which are sometimes extremely strong. I have had a number of
conversations with the management of CABO Yachts, Inc. , regarding the 
nuisance
problems caused by Nursery Products ' composting operation. In light of my
experience and that of my company, it appears to me that because of the 
odors
associated with the operation, and because of the close proximity of large 
numbers
of workers and residents, this is a very unsuitable location for a compo 
sting
facility.
III
III
III
Notice of Motion and Motion for Preliminar Injunction , Memorandum of Points 
and Authorities, and Declarations
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I declare under penalty of perjury under the laws of the State of California
that the foregoing is tre and correct.
Executed on June 30, 2005.
Notice of Motion and Motion for Prcliminll Injunction, Mc:moradum of Points 
and Autorities, and Declarions
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ARATION 0 BRUCE W. FOWLER
I, Bruce W. Fowler, hereby declare: 1. At all times since 1988, my wife 
Erica and I have resided at 11255
Cactus Road, Adelanto, California. 1 have personal knowledge of the matters 
and
facts set fort herein and, if called as a witness, could and would testify
competently thereto. 2. My home is located approximately 1.5 miles from the 
Nursery
Products composting facilty at 16284 Aster Road. Since Nursery Products 
began
operating in 2003, we have experienced an extreme infestation of flies at 
our
home. From the time the sun rises, the swanns oftlies are so intense that my 
wife
and I canot enjoy the out-of-doors at our home. On one occasion, after 
spraying
with a pesticide, my wife and I counted more than 1,000 dead flies on the 
floor of
our porch. We have lived in our home for 17 years, and we never experienced 
a
problem with flies until the composting operation began. 3. The odor coming 
from the compo sting facility is ugly. There is no
other word to describe it. The odors are nauseating and make outdoor 
activities
impossible. There is a public elementar school adjacent to my propert, and I
know that the students and teachers must be experiencing the same odors we 
do.
I declare under penalty of perjur under the laws of the State of California
that the foregoing is true and correct.
Executed on June 30, 2005.
DEC ARTION OF BRENDA
, Brenda Kno hereby declare: 1. J am and at all times since 2001 have been a 
resident of the City
Adelanto. My home address is 18287 Cherimoya Road. I have personal
knowledge of the matters and facts set fort herein and, if-called as a 
witness,
could and would testify competently thereto. 2. My home is located 
approximately three miles from the Nursery
Products compo sting facility at 16284 Aster Road. Since the composting
operations began, there have been extremely bad odors early in the morning 
and in
the evenings, especially when the weather is warm. There certiny was no odor
before Nursery Products began operating in 2003. There has also been a huge
number of flies and large amounts of dust. I cannot sit outside in the 
evengs at
my home because of the odors and flies. I no longer hang laundr out to
because of the dust in the air. These problems did not exist before the 
composting
operation began. The odors and the dust have aggravated my asthma and
breathing difficulties.
I declar under penalty of perjury under the laws of the State of Cali fomi
that the foregoing is tre and correct.
Executed on June 30, 2005.
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and Authorities, and Declarations 12492\0029\27410.4 -26- .

DECLARATION 0 GRACE RICE
I, Grace Rice, hereby declare: 1. I am and at all times since 1994 have been 
a resident of the City of
Adelanto. My home address is 17919 Juniper Street, and I live with my 
husband.
I have persona knowledge of the matters and facts set fort herein and, if 
called as
a witness, could and would testify competently thereto. 2. My home is 
located approximately 2.5 miles from the Nursery
Products composting facility at 16284 Aster Road. 3. About two years ago, I 
started to notice a foul stench at my house.
have noticed the stench a few days a week for the last couple of years. Some 
days
are worse than others. On the worst days, we cannot open our windows. On
several occasions, the odor has been so foul that I got sick to my stomach. 
Before
the odor began about two years ago, we frequently kept the windows in our 
house
open. 4. About two years ago, I stared to notice many flies around the 
outside
of my house. I have noticed the flies daily since then and some days there 
are
more flies than others. At times, some of them have gotten inside the house 
where
my husband and I try to kill them.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
Executed on June 30, 2005.


DECLARTION F JOHN L. YOUNG
I, John L. Young, hereby declare: 1. I am and at all times since 1982 have 
been a resident of the City of
Adelanto. My home address is 11281 Holly Road. I have personal knowledge of
the matters and facts set forth herein and, if called as a witness, could 
and would
testify competently thereto.

2. My home is located approximately one mile from the Nursery
Product composting facility at 16284 Aster Road.

3. In early 2003 , I was driving a tractor and noticed grading, and a lot of
material being dumped at the Nursery Products facility. I noticed a foul 
stench
coming from the facility.

. Since early 2003 , I have had problems with flies at my house. The
flies are present every day, some worse than others. On some days, I have 
seen
hundreds of flies at my house and if I open the door they will enter my 
home. S. Thee or four times a week for the last couple of years I have
experienced a foul stench at my house when I am outside. This is the same 
stench
I smelled in early 2003 when I passed by the Nursery Products facility. I 
keep the
windows closed so the smell does not waft inside.
I declare under penalty of perjur under the laws of the State of California
that the foregoing is tre and corrct.
Executed on June 30, 2005.
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DECLARATION OF MITCHELL E. ABBOTT
, Mitchell E. Abbott, declare: 1. I am an attorney duly admtted to practice 
before all cours of the
State of California and am a member of the law firm of Richards, Watson &
Gershon, with offices in Los Angeles, California. I am the member of that 
firm
primarily responsible for the representation of plaintiffs in this nuisance 
abatement
litigation. I have personal knowledge of the matters set forth herein and, 
if called
as a witness, could and would testify competently thereto. 2. Attached 
hereto as Exhibit "A" is a tre and correct copy of a
Settlement Agreement executed on November 1 , 2004 by and between the City 
of
Adelanto, plaintiff herein, and Nursery Products, LLC and Jeffrey P. Meberg,
defendants herein. The Settlement Agreement was executed for the puroses of
avoiding the expense of an appeal following the entr of summary judgment in
favor of the City of Adelanto in Nursery Products, LLC v. City of Adelanto
, C.D. Cal. Docket No. SACV 03- 1622-GLT (ANx). 3. Attached hereto as 
Exhibit "B" is a tre and correct copy of a letter I
received from David G. Hagopian, known to me to be counsel of record for
defendants Nursery Products, LLC and Jeffrey P. Meberg, dated June 21 , 
2005.
The letter was sent in response to a telephone call in which I asked Mr. 
Hagopian
whether Nursery Products planned to comply with the terms of the Settlement
Agreement.
I declare under penalty of perjury under the laws of the State of California
that the foregoing is tre and correct.
Executed on July 8, 2005.
Notice of Motion and Motion for Preliminar Injunction, Memorandum of Points 
and Authorities, and Declarations
12492\0029\827410. 29-

SETTLEMENT AGREEMENT
PARTIES
The parties to this agreement are Nursery Products, LLC, a California
limited liability company ("Nursery Products ), Jeff Meberg ("Meberg ), and 
the
City of Adelanto ("City"
II. RECIT ALS
The Composting Facility
Nursery Products owns and operates a compo sting facility ("Composting
Facility") located at 16284 Aster Road, in the City of Adelanto. This 
Composting
Facility consists of approximately 40 acres of graded land, a trailer with 
offices
and various pieces of equipment. The Composting Facility receives and 
processes
both "green waste" (grass clippings, wood chips, and similar materials) and 
biosolids
(treated sewage). After approximately 60 days of processing at the
Composting Facility, the finished material is sold as agrcultural 
fertilizer.
The Existing Bio-Solids Agreement
Prior to commencing operations of the Composting Facility, Nursery
Products and the City entered into an agreement under which Nursery Products
agreed to accept for processing, process, and dispose of up to five thousand
000) tons per year of Class "B" bio-solids generated at the City' s 
wastewater
treatment plant, without cost to the City or its residents, for a period of 
fifty (50)
years. Under the agreement the City is responsible for transporting 
bio-solids to
the Composting Facility, and for paying the costs of transport.
The Application for an Expanded Permit
In 2003 , Nursery Products applied to the California Integrated Waste
Management Board ("CIWMB") for an expanded solid waste facilities permit 
that
Page 1 of 14
12492\0029\797265.
would allow it to increase the amount of material composed annually by 
nearly
700%. The City expressed concerns to the CIWM about expanding the capacity
of the Composting Facility. The CIWMB has taken no action on the application
for the expanded permt.
The Lawsuit
On November 17 2003, Nursery Products and Meberg filed a lawsuit
against the City in the United States District Court, Central Distrct of 
California
(Docket number SACV 03- 1622-GLT (ANx)). The lawsuit alleged, in substance
that the City had violated the plaintiffs ' due process rights , had 
impermissibly
interfered with Nursery Products ' business, and had caused har to Nursery
Products' and Meberg s reputations. Summary judgment in favor of the City 
was
entered by the Court on October 8 2004.
Attorney s Fees Motion
The City has advised Nursery Products and Meberg of the City' s intention
to bring a motion for an award of its reasonable attorney s fees incurred in
defending the lawsuit, pursuant to 42 D. C. 1988. Nursery Products and
Meberg dispute the City' s entitlement to recover its attorney s fees. 
Additionally,
the City on October 21 , 2004, filed an application for an order taxing 
costs against
Nursery Products and Meberg.
Settlement
The partes desire to avoid the risk and expense of further litigation and
appeals, and desire fully and finally to resolve any and all claims by the 
City
against Nursery Products and Meberg for the recovery of attorney s fees and 
costs
and to achieve certainty regarding the future operation of the Compo sting 
Facility
and the disposal of sewage sludge generated at the City' s wastewater 
treatment
plant.
Page 2 of 14
12492\0029\797265.
III. AGREEMENT
The paries agree as follows:
Cessation of Operations at and Relocation of the Composfu
Facility
1. Nursery Products and Meberg shall, on or bef.ore July 1 , 2005 , cease
and desist from receiving and processing green waste, bio-solids, or any 
other
organic material for composting at the Composting Facility located at 16284 
Aster
Road in the City .of Adelanto.
2. Nursery Products and Meberg shall, on or before September 1 , 2005
permanently cease and desist from conducting composting activities at 16284
Aster Road in the City of Adelanto.
3. Nursery Products and Meberg shall, on or before September 1 2005
remove all green waste, bio-solids, or other composting material, including 
all
finished compost material and related equipment, from the Compo sting 
Facility
- and shall clean and clear the site provided, however that finished compost
material and fertilizer may be retained on the site in connection with the 
operation
. .of a wholesale/retail commercial nursery business, subject to such 
conditions as
may be imposed by the City.
4. Nursery Products and Meberg shall, use their best efforts to relocate
the Composting Facility to a new site, located within or outside the City 
limits of
the City of Adelanto, and to obtain all necessary pemrts therefor, on or 
before
September 1 2005.
Abandonment of Conditional Use Permit
The parties agree that the C.onditional Use Permt approved by the Planning
Commssion on December 4 2001 shall be dee"?ed abandoned and shall have no
further force and effect as of September 1 2005 , or upon such earlier date 
as
composting activities cease at the Composting Facility site.
Page 3 of 14
12492\0029\797265.
, '
Amendment to Bio-Solids Agreement
Concurrently with the execution of this Settlement Agreement, the parties
shall execute an Amendment to the existing Bio-Solids Agreement, in the form
attached hereto as Exhibit A.
Change of Name or Corporate Entity
The parties anticipate that the new composting facility may be operated
under a business name different from Nursery Products, or by a corprate 
entity
different from Nursery Products. The pares hereby agree that this Settlement
Agreement and the Amendment to the existing Bio-Solids Agreement, shall 
apply
to and be binding upon any corporate or other legal entity in which Nursery
Products or Meberg has an ownership interest, and which is engaged in the
composting business in the County of San Bernardino or at a location 
determned
by the City to be within a reasonable distance for delivery ofbio-solids 
generated
, at the City' s wastewater treatment plant.
Compliance Schedule: Fire Hydrants
1. Nursery Products and .Meberg shall submit to the City, on or before
January 2005 complete plans for insG:llation of all fire hydrants required 
by the
City' s Fire Department for the Composting Facility.
2. Nursery Products and Meberg shall, on or before March 1 2005
commence constrction of water lines, fire hydrants, and other required fire
suppression facilities in accordance with plans approved by the City of 
Adelanto.
3. Nursery Products and Meberg shall, on or before September 2005
complete constrction of water lines, fire hydrants and other required fire
suppression facilities in compliance with plans approved by the City of 
Adelanto.
Page 4 of 14
12492\0029\797265.
Compliance Schedule: Street Lighting
1. Nursery Products and Meberg shall submit to the City, on or before
Januar 1 2005, complete plans for installation of all street lighting on 
Pansy
Road as required for the Composting Facility.
2. Nursery Products and Meberg shall, on or before July 1 2005
commence constrction of street lighting on Pansy Road in accordance with 
plans
approved by the City of Adelanto.
3. Nursery Products and Meberg shall, on or before September 1 2005
complete constrction of street lighting on Pansy Road in accordance with 
plans
approved by the City of Adelanto.
Compliance Schedule: Landscaping
1. Nursery Products and Meberg shall submit to the City, on or before
January 1 2005; complete plans for landscaping the perimeter of the site, as
required by the Mitigation Monitoring Plan approved by the Planning 
Commssion
on December 4 2001.
2. Nursery Products and Meberg shall, on or before July 1 2005
commence planting and landscaping on the perimeter of the site, in 
accordance
with plans approved by the City of Adelanto.
. 3. Nursery Products and Meberg shall, on or before September 1 2005
complete planting and landscaping on the perimeter of the site, in 
accordance with
plans approved by the City of Adelanto.
Compliance Schedule: Paving of Aster Road
1. As of September 1 2005, or upon such earlier date as composting
activities cease at the Composting Facility site, the obligation of Nursery 
Products
and Meberg to pave the entirety of Aster Road, as required by the 
Conditional Use
Permit approved by the Planning Commssion on December 4, 2001 , shall be
deemed vacated.
Page 5 of 14
12492\0029\797265.
2. Nursery Products and Meberg understand and agree that a condition
of issuance of a Certificate of Occupancy for any future use of the subject 
propert
shall be a requirement that all required dedications and improvements 
abutting
rights-of-way for the site have been made to the ultimate right-of-way shown 
in
the General Plan and as determned by the City Engineer, as provided in 
Adelanto
Municipal Code Section 17. 10.090 et seq. Specifically, Nursery Products and
Meberg understand and agree that, as a condition of operating any business 
or
connercial activity on the subject propert, they wil be required to constrct 
and
install curbs, gutters, sidewalks, street trees, traffic improvements and 
drainage on
Aster Road, and to pave Aster Road to the center line, as provided in 
Adelanto
Municipal Code Section 17. 10.090(a)(I).
3. As a condition and term of this Settlement Agreement, the City,
Nursery Products, and Meberg agree that in lieu of the required 
improvements, the
City Council shall accept from Nursery Products and Meberg an agreement to
make the specified improvements concurrently upon the development of the
parcels ofpropert located to the east of the subject property, and 
identified as
Assessor s Parcel Nos. 3128- 121- , 3128- 121- , and 3128- 121- , but in any
event not later than September 1 2010, as provided in Adelanto Municipal 
Code
Section 17. 10.090(d)(l). The City, Nursery Products, and Meberg agree that 
the
agreement to make the specified improvements shall be accompanied by 
security
deposits, a corporate surety bond, or other security as authorized by the 
City
Engineer, as provided in Adelanto Municipal Code Section 17. 1 0.090( d)(2) 
and
(3), and further that the security required shall be similar to that 
required of other
owners of similar propert.
4. Nursery Products and Meberg understand and agree that a condition
of issuance of a Certificate of Occupancy for any future use of the subject 
propert
shall be a requirement that the primary vehicular entrance to the subject 
property
shall be from Pansy Road, and that the primary vehicular entrance may not be
from Aster Road unless and until Aster Road is fully paved and improved
between Holly Road and Pansy Road, as provided in Adelanto Municipal Code
Section 17. 10.090(a)(l).
Page 6 of 14
12492\0029\797265.
Control of Odors V ectors Trash and Dust
The parties agree that until composting a,ctivities at the Composting 
Facility
cease, Nursery Products and Meberg shall use best efforts to eliminate or 
minimize
offensive odors, vectors, trash, and dust emanating from the site. 
Specifically,
Nurery Products and Meberg agree to refrain from accepting delivery of green
waste or of any other materials known to aggravate problems of offensive 
odors
vectors, trash and dust emanating from the Composting Facility site.
Release of City s Claims for Attorney s Fees and Costs
In consideration of the agreements and undertkings set forth herein, City
hereby releases Nursery Products and Meberg of and from any and all 
liability for
payment of taxable costs and attorney s fees incurred in defending the 
lawsuit
pursuant to 42 D. C. 1988.
Abandonment of Plaintiffs ' Right to Appeal from Judgment
In consideration of the agreements and undertkings set forth herein
Nursery Products and Meberg hereby abandon and relinquish any rights they 
may
have to appeal from the judgment entered against them on October 8 , 2004.
Default
If any part fails to perform any obligation under this Settlement
Agreement, the non-defaulting party may institute legal proceedings seeking 
a
decree of specific performance or injunctive relief to enforce the terms of 
this
Settlement Agreement. If an action is brought to enforce or interpret 
provisions of
this Settlement Agreement, the prevailing part shall be entitled to recover
reasonable attorney s fees, costs, and necessary disbursements in addition 
to any
other relief to which that party may be entitled.
Notices
Any notice or communication required under this Settlement Agreement
shall be in writing, and shall be delivered personally, by facsimile (with 
original
Page 7 of 14
12492\0029\797265.
forwarded by United States Mail), or by Federal Express or other similar 
courier
promising overnight delivery. Notice shall be deemed to have been duly given
and received: (a) when delivered, if personally delivered to the recipient; 
(b) when
fully transmitted to the recipient' s facsimile device, if sent by facsimile 
during
normal business hours, provided such device is capable of generating a 
wrtten
confirmation of such transmission and receipt and provided further that an 
original
is deposited in first-class mail within two business days thereafter; or (c) 
on the
first business dayfollowing delivery to an overnight delivery service, 
provided
delivery is confirmed by the delivery service. Any part hereto may at any 
time
by giving three days' written notice to the other part, designate a new 
address
and/or facsimile number for notices and communications pursuant to this
Settlement Agreement.
If to the City:
City of Adelanto
Attention: City Manager
11600 Air Expressway
P. O. Box 10
Adelanto, CA 92301
With a copy to:
Marguerite P. Battersby, Esq.
City Attorney
Richards, Watson & Gershon
355 South Grand Avenue, 40th Floor
Los Angeles, California 90071-3101 Tel. (760) 246-2300
Fax (760) 246-8421 Tel. (213) 626-8484
Fax (213) 626-0078
If to Nursery Products:
Nursery Products, LLC
647 Camino de los Mares
Suite 108- 174
San Clemente, Calif. 92673
With a copy to:
David G. Hagopian, Esq.
Holdsworth & Hagopian, LLP
650 Town Center Drive, Suite 800
Costa Mesa, California 92626
Fax: (949) 366-2117
Tel. (714) 384-4120
Fax (714) 384-4121
Page 8 of 14
12492\0029\797265.
If to Jeff Meberg
Jeff Meberg
647 Camino de los Mares
Suite 108- 174
San Clemente, Calif. 92673
With a copy to:
David G. Hagopian, Esq.
Holdsworth & Hagopian, LLP
650 Town Center Drive, Suite 800
Costa Mesa, California 92626
Fax: (949) 366-2117
Tel. (714) 384-4120
fax (714) 384-4121
Warranty of Capac xecute Agreement
Each, part represents and warrants that the individuals executing this
Settlement Agreement on each part' s behalf possess full authority to 
execute this
agreement and to settle and compromise all claims settled and compromised by
this agreement.
Entire Agreement. Amendments. and Successors mJnterest
This Settlement Agreement contains the entire agreement of the paries and
supersedes any and all prior or contemporaneous understandings, negotiations
representations, promises, and agreements, oral or wrtten, by or between the
parties with respect to the matters set forth in this Settlement Agreement. 
This
Settlement Agreement shall not be amended, modified, or otherwise changed
except by a wrting duly signed by authorized representatives of Nursery 
Products
Meberg, and the City. This Settlement Agreement shall be binding upon and 
inure
to the benefit of the executors, administrators, personal representatives, 
heirs
successors, and assigns of each of the parties.
Legal Advice
In entering into this Settlement Agreemeht, each part has had the
opportnity to consult with and rely upon the advice of the attorneys of 
their own
choice. Each part represents and warrants that the terms of this Settlement
Agreement have been completely read by and explained to them by their 
attorneys
Page 9 of 14
12492\0029\797265.
and that those terms are fully understood and voluntaly accepted by them.
Severability
If any portion, provision, or par of this Settlement Agreement is held
detennned, or adjudicated to be invalid, unenforceable, or void for any 
reason
whatsoever, each such portion, provision, or part shall be severed from the
remaining portions, provisions, or parts of this Settlement Agreement, and 
shall
not effect the validity or enforceability of such remaining portions, 
provisions, or
parts.
Governinf: Law
This Settlement Agreement shall be constred and interpreted in accordance
with the laws of the State of California.
Execution of Counterparts
This Settlement Agreement shall become effective upon execution by all
paries. This agreement may be executed in counterparts, each of which shall 
be
deemed to be an original and all of which shall be deemed to constitute one 
and
the same document.
(Agreement continues next page)
PagelOof14
12492\0029\797265.
IN WITNESS WHEREOF the partes have executed this Settlement
Agreement as of November 2004.
ATTEST:
(Signatures continue next page
12492\0029\797265.
CITY OF ADELANTO
NURSERY PRODUCTS, LLC
By:
Jeff Meberg
President
By:
Secretary
JEFF MEBERG
By:
Jeff Meberg
Page 11 of 14
IN WINESS WHREOF the parties have executed th Settlement Agrement as of 
November 1 , 2004.
CITY OF ADELAN
ATTST: By:
Mayor
City Clerk
NUSERY PRODUCTS, LLC
By:
By:
By:
(Signatures contiue next pagel
12492\029\797265.
Page II of14
APPROVED AS TO FORM AND CONTENT:
HOLDSWORTH & HAGOPIAN, LLP
DAVID G. HAGOPIAN
Attorneys for Plaintiffs
Nursery Products, LLC
and Jeff Meberg
MARGUERIEP. BATTERSBY
CITY ATTORNEY
CITY OF ADELANTO
RICHARDS, WATSON & GERSHON
A Professional Corporation
MITCHELL E. ABBOlT
PATRICKK. BOBKO
GINETT A L. GIOVINCO
By lV
Attorneys for Defendan ,
City of Adelanto
Page 12 of 14
12492\0029\797265.
EXHIBIT A"
AMNDMENT TO BIO-SOLID WASTE DISPOSAL AGREEMENT
TPS NURSERY PRODUCTS, NURSERY PRODUCTS, LLC, JEFF MEBERG, and the CITY OF 
ADELANO hereby amend the "Bio--Solid Waste Disposal Agreement" dated as of 
June 26, 2001 between TPS NUSERY PRODUCTS and the CITY OF ADELANTO, as 
follows:
1. All references to TPS Nursery Products in the ' 'Bio- Solid Waste 
Disposal Agreement" shall be deemed references to Nursery Products
, LLC. 2. Paragraph 2 of the ''Bio- Solid Waste Disposal Agre ment" shall be 
amended to read: "Commencing November -1 2004 and continuing for fort-ttight 
(48) years thereafter, TPS Nursery Products or Nursery Products, LLC will 
accept for processing, process and dispose of Class ' B' bio- solids 
generated by or within
the City of Adelanto, not to exceed five thousand (5 000) tons per year 
without
cost to CITY or its residents.
3. A new Paragraph 17 is added to the "Bio-Solid Waste Disposal
Agreement" to read: "It is hereby agreed that this ' Bio-Solid Waste 
Disposal
Agreement' and the ' Amendment to Bio-SolidWaste Disposal Agreement' shall
apply to and be binding upon any corporate or other legal entity in which 
TPS
Nursery Products, Nursery Products, LLC, or Jeff Meberg has an ownership
interest, and which is engaged in the composting business in the County of 
San
Bernardino or at a location determned by the City to be within a
reasonable distance for delivery ofbio-solids generated at the City
s wastewater treatment plant."
12492\0029\797265.
Page 13 of 14
EXIDBIT A"
In all other respects, the "Bio-Solid Waste Disposal Agreement " as,
amended, remains. in full force and effect.
Dated: November 1 , 2004
CITY OF ADELANTO
ATTEST:
City Clerk
TPS NUERY PRODUCTS
Jeff Meberg
NUERY PRODUCTS, LLC
By:
Jeff Meberg
President
By:
Secretary
Jeff Meberg
Page 14 of 14
12492\0029\797265.
EXHIBIT A"
In all other respects, the "Bio-Solid Waste Disposal Agreement " as
amended, remains in full force and effect.
Dated: November 1 , 2004
ATTEST: J/L City Clerk
Page 14 of 14
12492\0029\797265.
CITY OF ADELANTO
By:
Mayor
TPS ERY PRODUCTS
Jeff Meberg
NUSERY PRODUCTS, LLC
By:
By:
Jeff Meberg
President
Secretary
Jeff Meberg
1 .
.----- ---... ..-
EXHIT
In all other respects, the "Bio-Solid Waste Disposal Agreement," as
amened rems in full forc and effect.
Dated: November 1 2004
ITST: CIT OF ADELANTO
By:
Mayor
City Cler
TPS NUERY PRODUCTS
NUSERY PRODUCTS, LLC
By:
By:
Page 14004
12492\029\791265.
EXHIBIT B
06/22/2005 08: 50 7143844121 HOLSWORTH HAGOPIAN PAGE 02/02
HOLDSWORTH 6 HAGOPIAN
ime. 114038.-012
plllldhlawAtm,C
June 21 2005
Mitchell E. Abbott, Esq.
Richards Watson Gershon
355 S. Grand Avenue, 40th floor
Los Angeles, CA.90071-3101
Re: Nursery Products, LLC, et al. v. City of AdelantQ, et al.
Via Facimile
Dear Mr. Abbott:
This letter responds to our conversation last week, at which time you
inquired as to the plan of Nursery Products to cease receiving waste and 
cease its
composting operations at its Adelanto site. Nursery Products intends to stop
receiving wate and bio-solids at the Adelanto site on July 1 2005 and will 
stop
compostnig materials there on September 1 , 2005.
DGHlh
Holds & HagoIan, A Pm ulonal Corporation
6s Town Cener Drve, Su! 800, Co Me$ California '926
m. 74- O FA 714.184-4121 ww.ltlawfrm. nurset/adtlanto/COabbott- 12 .11r
Recei ved at RWG Law on 6/22/2005 8:53:08 AM
PROOF OF SERVICE
(Code of Civil Procedure, g 1011)
I am an employee of First Legal Support Services and over the age of 
eighteen years
and not a party to the within action; my business address is First Legal 
Support Services, 1511 West
Beverly Boulevard, Los Angeles, California 90026.
On July 12, 2005, I served the following document(s):
NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION;
MEMORADUM OF POINTS AND AUTHORITIES AND DECLARTIONS OF
KEVIN MURPHY, MELVA DAVIS, DANIEL A. SARIENTO, MARARITA
SANTIAGO, ROBIN BRASHAW, BRUCE W. FOWLER, BRENDA KNOX
GRACE RICE, JOHN L. YOUNG, AND MITCHELL E. ABBOTT IN SUPPORT
THEREOF
by personally delivering the document( s) to the person( s) at the address( 
es) set forth below:
David G. Hagopian, Esq.
Holdswort & Hagopian
A Professional Corporation
650 Town ,Center Drive, Suite 800
Costa Mesa, CA 92626 15 I declare under penalty of perjur under the laws of 
the State of California that the
above is true and correct.
Executed on July 12, 2005.





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