Publisher: San Bruno Mountain Watch
Reporter: No Byline
PAUL V. CARROLL/121369
Attorney At Law
5 Manor Place
Menlo Park, California 94025
(650) 322-5652
Attorney for Petitioner
SAN BRUNO MOUNTAIN WATCH
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
SAN BRUNO MOUNTAIN WATCH,
Petitioner,
v.
CITY OF BRISBANE, CITY OF BRISBANE PLANNING AND COMMUNITY DEVELOPMENT DEPARTMENT, and Does I through X inclusive;
Respondents.
__________________________________/
CHARLES NG, JUDY NG, BEST DESIGN AND CONSTRUCTION CO., and DOES XI through XX, inclusive,
Real Parties in Interest.
__________________________________/
No.:
PETITION FOR WRIT OF ADMINISTRATIVE MANDATE (CCP � 1094.5)
INTRODUCTION
1. On August 1, 2005, the City of Brisbane approved Use Permit UP-1-02, Design Permit DP-1-02, and Use Permit UP-1-03 for a 30-unit residential condominium complex at 3710-3760 Bayshore Boulevard (project), and adopted a negative declaration for the project.
2. Members of the public submitted evidence demonstrating that the project would have a potential significant impact on the environment. Among other things, the evidence showed that the project site was characterized by landsliding, erosion, and seismic instability, and that the project itself could destabilize slopes above it.
3. Under the California Environmental Quality Act (CEQA), the lead agency must prepare an environmental impact report (EIR) for a project when there is substantial evidence that the project may have an adverse impact on the environment. The evidence in this case goes well beyond this low threshold. The City violated the law in failing to require an EIR for the project. But that was not all. The City also violated CEQA by deferring the formulation of mitigations until after project approval, by failing to adequately describe the project and its mitigations, by proposing mitigations that are not supported by substantial evidence, and by failing to prepare an adequate mitigation monitoring plan.
4. The Petitioner requests this Court to issue a writ of mandate setting aside the City's approval of the project and its adoption of a negative declaration.
GENERAL ALLEGATIONS
5. Petitioner San Bruno Mountain Watch is a non-profit California corporation dedicated to the preservation, protection, and restoration of San Bruno Mountain and its unique resources. Mountain Watch informs and educates the public regarding environmental, cultural, and historic issues relating to San Bruno Mountain. Mountain Watch has 2,100 members. Mountain Watch members are interested in the survival and recovery of wildlife species, including endangered and threatened species, and are interested in protecting their habitat. Mountain Watch acts in the belief that the San Francisco Bay forms an integral part of the broader San Bruno Mountain setting, and advocates for maximal preservation of historic, bayside open space. Members of Mountain Watch, including citizens, taxpayers, property owners, and residents, live, work, travel, and recreate near San Bruno Mountain, and value the natural resources that would be impacted by the proposed project.
6. Respondent City of Brisbane is a city organized under the laws of the State of California.
7. Respondent City of Brisbane Planning And Community Development Department is a department of the City of Brisbane. Respondents will be collectively referred to as the City.
8. The true names and capacities, whether individual, corporate, or otherwise, of DOES I through X are unknown to Petitioner, who therefore sues said Respondents by such fictitious names. Petitioner will seek leave to amend this petition when they have been ascertained.
9. Real parties in interest Charles Ng, Judy Ng, and Best Design and Construction Co. are listed in the initial study as the project's sponsors.
10. The true names and capacities, whether individual, corporate, or otherwise, of DOES XI through XX, are unknown to Petitioner who therefore sues said real parties in interest by such fictitious names. Petitioner will seek leave to amend this petition when they have been ascertained.
11. The project consists of 30 residential condominium units in a two-building complex. The project site of approximately 127, 070 square feet is situated on a very steep northeast facing slope on the flanks of San Bruno Mountain fronting on Bayshore Boulevard. It rises steeply from Bayshore Boulevard at an average slope of 66%. The buildings would be stepped into the hillside, requiring thousands of cubic yards of cut and a series of retaining walls.
12. Proposed site development is constrained by steep to precipitous slopes, landslide hazards and anticipated strong seismic ground shaking.
13. The applicant has hired two geological consulting firms who have prepared a number of reports that conclude that instability of the hillside requires mitigation, including more detailed geologic and geotechnical studies. The final design of necessary slope mitigation measures is to be based on the results of a detailed geotechnical investigation, including exploratory trenching and/or drilling. Establishment of access roads will be necessary for the subsurface exploration program.
14. Based on information, Petitioner believes and therefore alleges that the notice of decision approving the project and its negative declaration was filed on August 4, 2005.
15. Jurisdiction of this court is invoked pursuant to California Code of Civil Procedure 1094.5; California Public Resources Code sections 21167, 21168, and 21168.5.
16. Petitioner has performed all conditions precedent to the filing of this Petition by raising issues known to it before the City during the review process of the project. Petitioner requested that the City not approve the project, and has performed all conditions precedent to the other causes of action.
17. At all times mentioned herein, the City has been able to deny the approval of the project, and to require an EIR. Despite such ability, and despite Petitioner's demand for denial, the City has failed and continues to fail to perform its duty to deny the approval and require an EIR.
18. If the City is not ordered to withdraw its approval of the project, and real parties in interest are not enjoined from developing the project, the land and environmental values subject to and affected by the project will suffer immediate, irreparable, and permanent damage.
19. If the City is not ordered to withdraw its approval of the project, and if its decision is not stayed pursuant to CCP section 1094.5, subdivision (g), the land and environmental values subject to and affected by the project will suffer immediate, irreparable, and permanent damage.
20. Real parties will not be prejudiced by an injunction, or alternatively issuance of a stay pending judgment because they will have future opportunities for their project if such operations conform to the law.
FIRST CAUSE OF ACTION (CEQA Violation)
First Claim for Relief
21. Pursuant to Public Resources Code section 21100 and CEQA Guidelines 15064, an agency must prepare an environmental impact report whenever there is substantial evidence in the record or it can be fairly argued based on such evidence that a project may have significant impacts on the environment. (Pub. Res. Code, � 21100; Cal. Code Regs., tit. 14, � 15064.)
22. Under CEQA Guidelines 15065, an agency must prepare an EIR if a project's effects are individually limited, but cumulatively significant. (Cal. Code Regs., tit. 14, � 15064.)
23. There is substantial evidence in the record that the project may have significant adverse impacts on the environment in a number of ways, including but not limited to, impacts from landsliding, erosion, seismic events, the proposed geologic and geotechnical investigations, and the implementation of mitigation measures for slope instability impacts.
24. Because the record contains substantial evidence that the project may have significant impacts on the environment, the City should have required preparation of an EIR. The City violated the law and abused its discretion in approving the project and adopting a mitigated negative declaration. (Pub. Res. Code, �� 21082.2, 21100.)
25. Under CEQA, a lead agency may not hide behind a negative declaration's failure to undertake an analysis of a project's potential significant and cumulative impacts. (E.g., Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.) In this case there is substantial evidence that the negative declaration failed to undertake the studies necessary to support its conclusions, relating to a number of issues, including but not limited to, landsliding, erosion, seismic events, and slope instability impacts.
Second Claim for Relief
26. A negative declaration must contain an accurate description of the project. That description must contain any and all mitigation measures included in the project to avoid potentially significant impacts. (CEQA Guidelines, � 15071, subd. (a), (e).)
27. The courts have repeatedly emphasized the importance of an accurate and stable project description. (E.g., County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713.)
28. In this case, the description of the project and its mitigations is inadequate under CEQA, because the mitigations for slope instability impacts have not been formulated and are not yet known.
29. The failure to describe the project and its mitigations violated CEQA and constituted a prejudicial abuse of discretion. (Pub. Res. Code, � 21168, 21168.5.)
Third Claim for Relief
30. The adequacy of mitigation measures for a project must be supported by substantial evidence in the administrative record. (E.g., Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 422.)
31. In this case, the mitigated negative declaration proposes future studies and investigations to determine whether slope instability impacts can be mitigated, and, if so, what those mitigations will be.
32. This procedure violated CEQA, because the proposed future mitigations are unknown and therefore are not based on substantial evidence. It constituted a prejudicial abuse of discretion. (Pub. Res. Code, � 21168, 21168.5.)
Fourth Claim for Relief
33. It is unlawful under CEQA for an agency to defer the formulation of mitigations until after project approval. (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296; see CEQA Guidelines, � 15126.4, subd. (a)(1)(B).)
34. In this case, the City approved the project and adopted the negative declaration without first formulating mitigations for the unstable slopes above the project.
35. Instead, the City approved the project conditioned on a number of future studies and investigations intended to determine how to mitigate slope instability impacts. This procedure violated CEQA and constituted a prejudicial abuse of discretion. (Pub. Res. Code, �� 21168, 21168.5.)
Fifth Claim for Relief
36. When adopting a mitigated negative declaration, the lead agency shall also adopt a program for reporting on or monitoring the changes which it has either required in the project or made a condition of approval to mitigate or avoid significant environmental effects. (Pub. Res. Code, � 21081.6, subd. (a)(1); CEQA Guidelines, �� 15074, subd. (d), 15097.)
37. In this case, the mitigated negative declaration required numerous mitigation measures as conditions for approval. However, the proposed mitigation monitoring program only addresses two of those mitigations. As such, it is a wholly deficient under CEQA and its adoption constituted a prejudicial abuse of discretion. (Pub. Res. Code, �� 21168, 21168.5.)
WHEREFORE, Petitioner prays for judgment as follows:
1. For Writ of Mandate ordering the City to set aside its approvals of Use Permit UP-1-02, Design Permit DP-1-02, and Use Permit UP-1-03, and its adoption of a negative declaration, and to prepare an EIR for the project as required by CEQA and its regulations.
2. For a permanent injunction enjoining real parties in interest, their agents, employees, representatives, and all persons acting in concert or participating with them, from engaging in any physical activity at the project site pursuant to the City's approval of the project until such activity has been lawfully approved under California statutes and regulations.
3. Alternatively, for a stay of the City's decision approving the project pending judgment pursuant to Code of Civil Procedure section 1094.5, subdivision (g).
4. For reasonable attorney's fees under California Code of Civil Procedure Section 1021.5.
5. For costs of suit.
6. For such other and further relief as the Court deems proper.
Dated: August ___, 2005
PAUL V. CARROLL
Attorney for Petitioner
VERIFICATION
I, Philip Batchelder, declare as follows: I am a member of Petitioner San Bruno Mountain Watch and am authorized to make this verification.
I have read the foregoing petition and know the contents thereof. The same is true of my own knowledge, except as to those matters stated on information and belief, which I am informed and believe are true, and on that basis allege them to be true.
I declare under penalty of perjury that the foregoing is true and correct and that this verification was executed on August __, 2005, Brisbane, California.
________________________________
Philip Batchelder
PROOF OF SERVICE
I am a citizen of the United States and a resident of the County of San Mateo. I am over the age of eighteen years and not a party to the within entitled action; my business address is: 5 Manor Place, Menlo Park, CA 94025.
On August ___, 2005, I served one true copy of PETITION FOR WRIT OF ADMINISTRATIVE MANDATE, PETITIONER'S NOTICE REGARDING PREPARATION OF ADMINISTRATIVE RECORD by placing a true copy thereof enclosed in a sealed envelope, and postage thereon fully prepaid, in the United States mail at Menlo Park, California addressed as follows:
Attorney General, Resources Div.
455 Golden Gate Ave., Ste. 11000
San Francisco, CA 94102
Charles and Judy Ng
Best Design and Construction Co.
100-C Old County Rd.
Brisbane, CA 94005
City of Brisbane
City Hall
50 Park Place
Brisbane, CA 94005
I, Paul V. Carroll, declare, under penalty of perjury, that the foregoing is true and correct. Executed on August ___, 2005, at Menlo Park, California.
________________________
Reporter: No Byline
PAUL V. CARROLL/121369
Attorney At Law
5 Manor Place
Menlo Park, California 94025
(650) 322-5652
Attorney for Petitioner
SAN BRUNO MOUNTAIN WATCH
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
SAN BRUNO MOUNTAIN WATCH,
Petitioner,
v.
CITY OF BRISBANE, CITY OF BRISBANE PLANNING AND COMMUNITY DEVELOPMENT DEPARTMENT, and Does I through X inclusive;
Respondents.
__________________________________/
CHARLES NG, JUDY NG, BEST DESIGN AND CONSTRUCTION CO., and DOES XI through XX, inclusive,
Real Parties in Interest.
__________________________________/
No.:
PETITION FOR WRIT OF ADMINISTRATIVE MANDATE (CCP � 1094.5)
INTRODUCTION
1. On August 1, 2005, the City of Brisbane approved Use Permit UP-1-02, Design Permit DP-1-02, and Use Permit UP-1-03 for a 30-unit residential condominium complex at 3710-3760 Bayshore Boulevard (project), and adopted a negative declaration for the project.
2. Members of the public submitted evidence demonstrating that the project would have a potential significant impact on the environment. Among other things, the evidence showed that the project site was characterized by landsliding, erosion, and seismic instability, and that the project itself could destabilize slopes above it.
3. Under the California Environmental Quality Act (CEQA), the lead agency must prepare an environmental impact report (EIR) for a project when there is substantial evidence that the project may have an adverse impact on the environment. The evidence in this case goes well beyond this low threshold. The City violated the law in failing to require an EIR for the project. But that was not all. The City also violated CEQA by deferring the formulation of mitigations until after project approval, by failing to adequately describe the project and its mitigations, by proposing mitigations that are not supported by substantial evidence, and by failing to prepare an adequate mitigation monitoring plan.
4. The Petitioner requests this Court to issue a writ of mandate setting aside the City's approval of the project and its adoption of a negative declaration.
GENERAL ALLEGATIONS
5. Petitioner San Bruno Mountain Watch is a non-profit California corporation dedicated to the preservation, protection, and restoration of San Bruno Mountain and its unique resources. Mountain Watch informs and educates the public regarding environmental, cultural, and historic issues relating to San Bruno Mountain. Mountain Watch has 2,100 members. Mountain Watch members are interested in the survival and recovery of wildlife species, including endangered and threatened species, and are interested in protecting their habitat. Mountain Watch acts in the belief that the San Francisco Bay forms an integral part of the broader San Bruno Mountain setting, and advocates for maximal preservation of historic, bayside open space. Members of Mountain Watch, including citizens, taxpayers, property owners, and residents, live, work, travel, and recreate near San Bruno Mountain, and value the natural resources that would be impacted by the proposed project.
6. Respondent City of Brisbane is a city organized under the laws of the State of California.
7. Respondent City of Brisbane Planning And Community Development Department is a department of the City of Brisbane. Respondents will be collectively referred to as the City.
8. The true names and capacities, whether individual, corporate, or otherwise, of DOES I through X are unknown to Petitioner, who therefore sues said Respondents by such fictitious names. Petitioner will seek leave to amend this petition when they have been ascertained.
9. Real parties in interest Charles Ng, Judy Ng, and Best Design and Construction Co. are listed in the initial study as the project's sponsors.
10. The true names and capacities, whether individual, corporate, or otherwise, of DOES XI through XX, are unknown to Petitioner who therefore sues said real parties in interest by such fictitious names. Petitioner will seek leave to amend this petition when they have been ascertained.
11. The project consists of 30 residential condominium units in a two-building complex. The project site of approximately 127, 070 square feet is situated on a very steep northeast facing slope on the flanks of San Bruno Mountain fronting on Bayshore Boulevard. It rises steeply from Bayshore Boulevard at an average slope of 66%. The buildings would be stepped into the hillside, requiring thousands of cubic yards of cut and a series of retaining walls.
12. Proposed site development is constrained by steep to precipitous slopes, landslide hazards and anticipated strong seismic ground shaking.
13. The applicant has hired two geological consulting firms who have prepared a number of reports that conclude that instability of the hillside requires mitigation, including more detailed geologic and geotechnical studies. The final design of necessary slope mitigation measures is to be based on the results of a detailed geotechnical investigation, including exploratory trenching and/or drilling. Establishment of access roads will be necessary for the subsurface exploration program.
14. Based on information, Petitioner believes and therefore alleges that the notice of decision approving the project and its negative declaration was filed on August 4, 2005.
15. Jurisdiction of this court is invoked pursuant to California Code of Civil Procedure 1094.5; California Public Resources Code sections 21167, 21168, and 21168.5.
16. Petitioner has performed all conditions precedent to the filing of this Petition by raising issues known to it before the City during the review process of the project. Petitioner requested that the City not approve the project, and has performed all conditions precedent to the other causes of action.
17. At all times mentioned herein, the City has been able to deny the approval of the project, and to require an EIR. Despite such ability, and despite Petitioner's demand for denial, the City has failed and continues to fail to perform its duty to deny the approval and require an EIR.
18. If the City is not ordered to withdraw its approval of the project, and real parties in interest are not enjoined from developing the project, the land and environmental values subject to and affected by the project will suffer immediate, irreparable, and permanent damage.
19. If the City is not ordered to withdraw its approval of the project, and if its decision is not stayed pursuant to CCP section 1094.5, subdivision (g), the land and environmental values subject to and affected by the project will suffer immediate, irreparable, and permanent damage.
20. Real parties will not be prejudiced by an injunction, or alternatively issuance of a stay pending judgment because they will have future opportunities for their project if such operations conform to the law.
FIRST CAUSE OF ACTION (CEQA Violation)
First Claim for Relief
21. Pursuant to Public Resources Code section 21100 and CEQA Guidelines 15064, an agency must prepare an environmental impact report whenever there is substantial evidence in the record or it can be fairly argued based on such evidence that a project may have significant impacts on the environment. (Pub. Res. Code, � 21100; Cal. Code Regs., tit. 14, � 15064.)
22. Under CEQA Guidelines 15065, an agency must prepare an EIR if a project's effects are individually limited, but cumulatively significant. (Cal. Code Regs., tit. 14, � 15064.)
23. There is substantial evidence in the record that the project may have significant adverse impacts on the environment in a number of ways, including but not limited to, impacts from landsliding, erosion, seismic events, the proposed geologic and geotechnical investigations, and the implementation of mitigation measures for slope instability impacts.
24. Because the record contains substantial evidence that the project may have significant impacts on the environment, the City should have required preparation of an EIR. The City violated the law and abused its discretion in approving the project and adopting a mitigated negative declaration. (Pub. Res. Code, �� 21082.2, 21100.)
25. Under CEQA, a lead agency may not hide behind a negative declaration's failure to undertake an analysis of a project's potential significant and cumulative impacts. (E.g., Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311.) In this case there is substantial evidence that the negative declaration failed to undertake the studies necessary to support its conclusions, relating to a number of issues, including but not limited to, landsliding, erosion, seismic events, and slope instability impacts.
Second Claim for Relief
26. A negative declaration must contain an accurate description of the project. That description must contain any and all mitigation measures included in the project to avoid potentially significant impacts. (CEQA Guidelines, � 15071, subd. (a), (e).)
27. The courts have repeatedly emphasized the importance of an accurate and stable project description. (E.g., County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713.)
28. In this case, the description of the project and its mitigations is inadequate under CEQA, because the mitigations for slope instability impacts have not been formulated and are not yet known.
29. The failure to describe the project and its mitigations violated CEQA and constituted a prejudicial abuse of discretion. (Pub. Res. Code, � 21168, 21168.5.)
Third Claim for Relief
30. The adequacy of mitigation measures for a project must be supported by substantial evidence in the administrative record. (E.g., Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 422.)
31. In this case, the mitigated negative declaration proposes future studies and investigations to determine whether slope instability impacts can be mitigated, and, if so, what those mitigations will be.
32. This procedure violated CEQA, because the proposed future mitigations are unknown and therefore are not based on substantial evidence. It constituted a prejudicial abuse of discretion. (Pub. Res. Code, � 21168, 21168.5.)
Fourth Claim for Relief
33. It is unlawful under CEQA for an agency to defer the formulation of mitigations until after project approval. (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296; see CEQA Guidelines, � 15126.4, subd. (a)(1)(B).)
34. In this case, the City approved the project and adopted the negative declaration without first formulating mitigations for the unstable slopes above the project.
35. Instead, the City approved the project conditioned on a number of future studies and investigations intended to determine how to mitigate slope instability impacts. This procedure violated CEQA and constituted a prejudicial abuse of discretion. (Pub. Res. Code, �� 21168, 21168.5.)
Fifth Claim for Relief
36. When adopting a mitigated negative declaration, the lead agency shall also adopt a program for reporting on or monitoring the changes which it has either required in the project or made a condition of approval to mitigate or avoid significant environmental effects. (Pub. Res. Code, � 21081.6, subd. (a)(1); CEQA Guidelines, �� 15074, subd. (d), 15097.)
37. In this case, the mitigated negative declaration required numerous mitigation measures as conditions for approval. However, the proposed mitigation monitoring program only addresses two of those mitigations. As such, it is a wholly deficient under CEQA and its adoption constituted a prejudicial abuse of discretion. (Pub. Res. Code, �� 21168, 21168.5.)
WHEREFORE, Petitioner prays for judgment as follows:
1. For Writ of Mandate ordering the City to set aside its approvals of Use Permit UP-1-02, Design Permit DP-1-02, and Use Permit UP-1-03, and its adoption of a negative declaration, and to prepare an EIR for the project as required by CEQA and its regulations.
2. For a permanent injunction enjoining real parties in interest, their agents, employees, representatives, and all persons acting in concert or participating with them, from engaging in any physical activity at the project site pursuant to the City's approval of the project until such activity has been lawfully approved under California statutes and regulations.
3. Alternatively, for a stay of the City's decision approving the project pending judgment pursuant to Code of Civil Procedure section 1094.5, subdivision (g).
4. For reasonable attorney's fees under California Code of Civil Procedure Section 1021.5.
5. For costs of suit.
6. For such other and further relief as the Court deems proper.
Dated: August ___, 2005
PAUL V. CARROLL
Attorney for Petitioner
VERIFICATION
I, Philip Batchelder, declare as follows: I am a member of Petitioner San Bruno Mountain Watch and am authorized to make this verification.
I have read the foregoing petition and know the contents thereof. The same is true of my own knowledge, except as to those matters stated on information and belief, which I am informed and believe are true, and on that basis allege them to be true.
I declare under penalty of perjury that the foregoing is true and correct and that this verification was executed on August __, 2005, Brisbane, California.
________________________________
Philip Batchelder
PROOF OF SERVICE
I am a citizen of the United States and a resident of the County of San Mateo. I am over the age of eighteen years and not a party to the within entitled action; my business address is: 5 Manor Place, Menlo Park, CA 94025.
On August ___, 2005, I served one true copy of PETITION FOR WRIT OF ADMINISTRATIVE MANDATE, PETITIONER'S NOTICE REGARDING PREPARATION OF ADMINISTRATIVE RECORD by placing a true copy thereof enclosed in a sealed envelope, and postage thereon fully prepaid, in the United States mail at Menlo Park, California addressed as follows:
Attorney General, Resources Div.
455 Golden Gate Ave., Ste. 11000
San Francisco, CA 94102
Charles and Judy Ng
Best Design and Construction Co.
100-C Old County Rd.
Brisbane, CA 94005
City of Brisbane
City Hall
50 Park Place
Brisbane, CA 94005
I, Paul V. Carroll, declare, under penalty of perjury, that the foregoing is true and correct. Executed on August ___, 2005, at Menlo Park, California.
________________________