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
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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.
__________________________________/ |
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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 CityÕs 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 projectÕs
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 PetitionerÕs
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 projectÕs 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
declarationÕs failure to undertake an analysis of a projectÕs 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 CityÕs approval of the project until such
activity has been lawfully approved under California statutes and regulations.
3. Alternatively, for a stay of the CityÕs decision approving
the project pending judgment pursuant to Code of Civil Procedure section
1094.5, subdivision (g).
4. For reasonable attorneyÕs 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
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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, PETITIONERÕS 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:
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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.
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