1 2 3 4 5 6 7 8 RICHARD T. DRURY (Cal. Bar No. 163559) MICHAEL R. LOZEAU (Cal. Bar No. 142893) REBECCA L. DAVIS (Cal. Bar. No. 271662) CHRISTINA M. CARO (Cal. Bar. No. 250797) LOZEAU DRURY LLP 410 12th Street, Suite 250 Oakland, CA 94607 Tel: (510) 836-4200 Fax: (510) 836-4205 E-mail: richard@lozeaudrury.com rebecca@lozeaudrury.com Attorneys for Petitioners and Plaintiffs 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO 10 11 12 13 14 15 COALITION FOR FAIR, LEGAL AND ENVIRONMENTAL TRANSIT, a non-profit unincorporated association; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL UNION 1021, an organized labor union; SARA SHORTT, an individual; and ELIZABETH ALEXANDER, an individual, 16 Petitioners and Plaintiffs, 17 vs. Case No.: VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (California Environmental Quality Act (“CEQA”), Pub. Res. Code § 21000, et seq.; Code of Civil Procedure §§ 1094.5, 1085) 18 19 20 21 22 23 24 25 26 27 CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation; BOARD OF SUPERVISORS OF THE CITY AND COUNTY OF SAN FRANCISCO, governing body of the City and County of San Francisco; PLANNING COMMISSION OF THE CITY AND COUNTY OF SAN FRANCISCO, a public entity; SAN FRANCISCO PLANNING DEPARTMENT, a public entity; MAYOR EDWIN M. LEE, in his official capacity; SAN FRANCISCO MUNICIPAL TRANSPORTATION AGENCY, a public entity; BOARD OF DIRECTORS OF THE SAN FRANCISCO MUNICIPAL TRANSPORTATION AGENCY, a public entity; and DOES 1 through 10, inclusive, Dept: CEQA Case 28 Respondents and Defendants. 1 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SAN FRANCISCO MUNICIPAL TRANSPORTATION AGENCY, a public entity; ALTRANS- TRANSPORTATION MANAGEMENT ASSOCIATION, INC., a California corporation; APPLE, INC., a California corporation; BAUER’S INTELLIGENT TRANSPORTATION, INC., a California corporation; BLACK TIE TRANSPORTATION LLC, a California limited liability company; COMPASS TRANSPORTATION, INC., a California corporation; EL CAMINO CHARTER LINES, INC., a California corporation; GENENTECH, INC., a Delaware corporation; GOOGLE, INC., a Delaware Company; HORIZON COACH LINES PAYMASTER LLC, a California limited liability company; MCCARTHY COOK & CO., a Delaware corporation; MCLEAN CONSULTING SERVICES INC., a California corporation; MERCURY TOURS, a California corporation; MOBILITY PLUS TRANSPORTATION LLC, a California limited liability company; PENINSULA TRAFFIC CONGESTION RELIEF ALLIANCE, a joint powers authority; PURE LUXURY LIMOUSINE SERVICE, a California corporation; REGENTS OF THE UNIVERSITY OF CALIFORNIA, governing body of the University of California; RIDEPAL, INC., a Delaware corporation; ROYAL COACH TOURS, a California corporation; the SAN FRANCISCO HEALTH COMMISSION, a public entity; SAN FRANCISCO MINIBUS CHARTER CO., a suspended California corporation; SFO SHUTTLE BUS COMPANY, a California corporation or corporate subsidiary; TRANSMETRO, a California corporation; WILLIAMS SONOMA, INC., a Delaware corporation; and ROES 1 through 100, inclusive, Real Parties in Interest and Defendants. 26 27 28 2 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 Petitioners and Plaintiffs COALITION FOR FAIR, LEGAL AND ENVIRONMENTAL 2 TRANSIT, SAN FRANCISCANS AGAINST DISPLACEMENT, a non-profit unincorporated 3 association; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL UNION 1021, an 4 organized labor union; SARA SHORTT, an individual; and ELIZABETH ALEXANDER, an 5 individual, (collectively, “Petitioners”) petition this Court on their own behalf, on behalf of their 6 members, on behalf of the general public and in the public interest pursuant to Code of Civil 7 Procedure (“CCP”) § 1094.5 and Public Resources Code (“PRC”) § 21168, or, in the alternative, 8 pursuant to CCP § 1085 and PRC § 21168.5, for a writ of mandate, and for declaratory and 9 injunctive relief directed to Respondents and Defendants the CITY AND COUNTY OF SAN 10 FRANCISCO, a municipal corporation; BOARD OF SUPERVISORS OF THE CITY AND 11 COUNTY OF SAN FRANCISCO, governing body of the City and County of San Francisco; 12 PLANNING COMMISSION OF THE CITY AND COUNTY OF SAN FRANCISCO, a public 13 entity; SAN FRANCISCO PLANNING DEPARTMENT, a public entity; MAYOR EDWIN M. 14 LEE, in his official capacity; SAN FRANCISCO MUNICIPAL TRANSPORTATION 15 AGENCY, a public entity; BOARD OF DIRECTORS OF THE SAN FRANCISCO 16 MUNICIPAL TRANSPORTATION AGENCY, a public entity; and DOES 1 through 10, 17 inclusive, (collectively, “Respondents” or “City”), and Real Party in Interest and Defendant SAN 18 FRANCISCO MUNICIPAL TRANSPORTATION AGENCY (“SFMTA”). Petitioners are 19 informed and believe, and thereupon allege, that real parties in interest to this action may include 20 ALTRANS- TRANSPORTATION MANAGEMENT ASSOCIATION, INC., a California 21 Corporation; APPLE, INC., a California company; BAUER’S INTELLIGENT 22 TRANSPORTATION, INC., a California Corporation; BLACK TIE TRANSPORTATION 23 LLC, a California limited liability company; COMPASS TRANSPORTATION, INC., a 24 California Corporation; EL CAMINO CHARTER LINES, INC., a California Corporation; 25 GENENTECH, INC., a Delaware Company; GOOGLE, INC., a Delaware Company; HORIZON 26 COACH LINES PAYMASTER LLC, a California limited liability company; MCCARTHY 27 COOK & CO., a Delaware Corporation; MCLEAN CONSULTING SERVICES INC., a 28 California Company; MERCURY TOURS, a California company; MOBILITY PLUS 3 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 TRANSPORTATION LLC, a California limited liability company; PENINSULA TRAFFIC 2 CONGESTION RELIEF ALLIANCE, a joint powers authority; PURE LUXURY LIMOUSINE 3 SERVICE, a California Corporation; REGENTS OF THE UNIVERSITY OF CALIFORNIA, 4 governing body of the University of California; RIDEPAL, INC., a Delaware Corporation; 5 ROYAL COACH TOURS, a California corporation; the SAN FRANCISCO HEALTH 6 COMMISSION, a public entity; SAN FRANCISCO MINIBUS CHARTER CO., a suspended 7 California Corporation; SFO SHUTTLE BUS COMPANY, a California corporation or corporate 8 subsidiary; TRANSMETRO, a California Corporation; WILLIAMS SONOMA, INC., a 9 Delaware corporation; and ROES 1 through 100, inclusive, (collectively, “Real Parties”). By 10 this verified petition and complaint (“Petition”), Petitioners allege as follows: 11 12 INTRODUCTION 1. Petitioners bring this action to challenge the April 1, 2014 decision of Respondent 13 Board of Supervisors of the City and County of San Francisco’s (“Board”) approval of the 14 proposed Commuter Shuttle Pilot Program (“Shuttle Project” or “Project”) proposed by the San 15 Francisco Municipal Transportation Agency (“SFMTA”), and issuance of a categorical 16 exemption for the Project, illegally exempting the Project from review under the California 17 Environmental Quality Act (“CEQA”), Pub. Res. Code (“PRC”) § 21000, et seq. In doing so, 18 the Board voted to uphold the January 21, 2014 decision of the Respondent Board of Directors of 19 the SFMTA approving Resolution No. 14-023: (1) issuing a categorical exemption for the 20 Project, (2) approving the Project, and (3) amending Division II of the Transportation Code to 21 authorize the Project, and the decision of Respondent San Francisco Planning Department 22 finding the Project to be exempt from CEQA review (collectively, the “Project Approval”). 23 2. The Shuttle Project establishes a pilot permit program to authorize certain private 24 commuter shuttle buses to stop in bus stops designated for San Francisco’s Municipal transit 25 system (“MUNI”) for the purpose of loading or unloading passengers, and establishing a fee for 26 such permits, and penalties for permit violations. These shuttles are closed systems that provide 27 service to a specific population and are not open to the general public. 28 3. Prior to Project Approval, most private commuter shuttle buses were acting 4 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 illegally, using public bus stops (“MUNI stops”) to load and unload passengers in violation of 2 State law and the San Francisco Municipal Code. MUNI stops are designated by a red curb, 3 which prohibits parking and stopping by private vehicles, including commuter shuttles. 4 4. On an average weekday, these illegal commuter shuttles (“Illegal Shuttles”) have 5 more than 35,000 boardings per day, on more than 350 shuttle vehicles, and use more than 200 6 MUNI stops around the City. 7 5. The City has allowed these Illegal Shuttles to operate illegally. While California 8 Vehicle Code § 22500 prohibits use of MUNI stops by private vehicles and requires a minimum 9 fine of $100, the City is not actively enforcing the state law against the Illegal Shuttles. 10 Inconsistent with this provision of state law, the Shuttle Project allows Illegal Shuttles to obtain a 11 permit that would allow shuttles to use over 200 designated MUNI stops for a fee of only $1 per 12 stop, per day. 13 6. As part of the Project, the City plans to solicit input from shuttle service providers 14 and the public about which stops to include in the Project. SFMTA would then select 15 approximately 200 Muni stops for shared use. 16 7. A shuttle bus program that involves 35,000 daily boardings, 350 vehicles, and 17 over 200 stops, requires CEQA review to determine the environmental impacts of the program, 18 to determine ways to mitigate those impacts, and to analyze alternative routes, vehicles and fuels 19 that would minimize the impacts of the Project. Indeed, the City is currently conducting CEQA 20 review for SFMTA’s own Transit Effectiveness Project, which involves re-routing certain MUNI 21 lines and other measures. (http://www.sfmta.com/projects-planning/projects/tep-transit- 22 effectiveness-project.) 23 8. Nevertheless, while the City is conducting full CEQA review for MUNI’s own 24 Transit Effectiveness Project, the City at the same time decided to exempt the private Illegal 25 Shuttles entirely from all CEQA review. Rather than preparing an EIR (or even a negative 26 declaration), Respondents instead issued a Notice of Exemption for the Shuttle Project. 27 28 9. In exempting the Shuttle Project from CEQA review, the City relied on the Class 6 “Information Collection” categorical exemption (14 CCR § 15306). The City’s decision to 5 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 exempt the Shuttle Project from CEQA review based on the Class 6 Exemption was inconsistent 2 with the terms of the exemption and was not supported by substantial evidence. 3 10. The Class 6 Exemption, on its face, is not applicable to the Project because the 4 Project does not meet the criteria for the exemption because the Shuttle Project involves much 5 more than mere “information collection,” including changing the location of shuttle stops and 6 authorizing activities currently illegal under State law. 7 11. Respondents’ reliance on a categorical exemption to approve the Project was also 8 improper because substantial evidence in the record supports a fair argument that the Project will 9 result in significant environmental impacts, including air pollution, impacts to pedestrian and 10 bicyclist safety, delays to public transportation systems, and displacement of low and moderate- 11 income members of the community that live and work in areas near proposed shuttle stops. 12 These types of environmental impacts do not usually occur as a result of “information collection” 13 activities. 14 12. By failing to perform any CEQA review of the Project, by issuing a categorical 15 exemption for the Project, and by adopting amendments to the San Francisco Transportation 16 Code in a manner inconsistent with the California Vehicle Code, Respondents failed to proceed 17 in a manner required by law. 18 PARTIES 19 Petitioners and Plaintiffs 20 13. Petitioner and Plaintiff COALITION FOR FAIR, LEGAL AND 21 ENVIRONMENTAL TRANSIT (“Coalition”), is a non-profit unincorporated association based 22 in the City and County of San Francisco, and comprised of San Francisco residents who are 23 concerned about gentrification and displacement in San Francisco, which is fueled in part by the 24 Illegal Shuttles. Coalition members have watched as long-time low and middle-income residents 25 of San Francisco have been displaced by wealthy technology workers, many of whom ride the 26 Illegal Shuttles to and from work in the South Bay. The Coalition is concerned about the failure 27 of the City to conduct CEQA review for the Shuttle Project to analyze and mitigate impacts 28 including displacement, air pollution, pedestrian and bicycle safety impacts and other impacts. 6 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 Members of the Coalition presented comments to the Board of Supervisors requesting review of 2 the Project under CEQA. The interests of the Coalition are unique, will be directly impacted by 3 the Project, and are not adequately represented by other parties. 4 14. SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL UNION 1021 5 ("SEIU Local 1021"), is a non-profit public and private service employees' union with over 6,000 6 members living in the City and County of San Francisco. SEIU Local 1021 is concerned that its 7 members are being forced out of the City in part as a result of Illegal Shuttles. SEIU Local 1021 8 is also concerned that its members are being exposed to air pollution, pedestrian and bicycle 9 safety risks, and other impacts of the Shuttle Project. SEIU Local 1021 and many of its members 10 urged the City to conduct CEQA review of the Shuttle Project to analyze and mitigate these 11 impacts. The interests of SEIU Local 1021 members are unique and will be directly impacted 12 by the Project. Their interests are not adequately represented by other parties. 13 15. Petitioner and Plaintiff SARA SHORTT is a concerned citizen who resides in the 14 City and County of San Francisco, California. Ms. Shortt presented written and oral comments 15 to the City during the administrative process on the matters being challenged in the Petition. Ms. 16 Shortt is deeply concerned with the impacts of the Shuttle Project, including displacement of low 17 and moderate income persons, air pollution, pedestrian and bicycle safety risks, and interference 18 with MUNI buses. Ms. Shortt urged the City to conduct CEQA review of the Project to analyze 19 and mitigate these impacts. 20 16. Petitioner and Plaintiff ELIZABETH ALEXANDER is a concerned citizen who 21 resides in the City and County of San Francisco, California. Ms. Alexander has a direct and 22 beneficial interest in Respondents’ compliance with the laws bearing upon approval of the 23 Project. Ms. Alexander has been and will be directly and adversely affected by Respondents’ 24 approval of the Project and the significant and unmitigated environmental impacts relating to the 25 City’s illegal approval of the Project in violation of CEQA. Ms. Alexander is concerned about 26 displacement of low and moderate income workers and residents of San Francisco as a result of 27 the Illegal Shuttles. She is also concerned about exposure to air pollution, pedestrian and bicycle 28 safety risks, and other impacts of the Shuttle Project. 7 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 Respondents and Defendants 17. Respondent and Defendant CITY AND COUNTY OF SAN FRANCISCO (“City 3 and County”) is a municipal corporation in whose jurisdiction the proposed project will be 4 located, with its headquarters in San Francisco, California. The City and County has principal 5 responsibility for determining whether projects within its jurisdiction are consistent with the City 6 and County’s General Plan, Land Use Ordinances, and other applicable laws. 7 18. Respondent and Defendant BOARD OF SUPERVISORS OF THE CITY AND 8 COUNTY OF SAN FRANCISCO (“Board”) serves as the legislative body of the City and 9 County of San Francisco for the planning and provision of services related to public needs and 10 the requirements of state laws. As the elected representatives of the people of San Francisco 11 City and County, the Board establishes overall city and county priorities and sets policy. 12 Respondent Board is the governing body of the City and County and is ultimately responsible for 13 reviewing and approving or denying the Project. The Board and its members are sued here in 14 their official capacities. The Board voted on April 1, 2014 to approve the Project and to exempt 15 the Project entirely from all CEQA review. 16 19. Respondent and Defendant PLANNING COMMISSION OF THE CITY AND 17 COUNTY OF SAN FRANCISCO (“Planning Commission”) is a commission of the City and 18 County of San Francisco, with jurisdiction to approve prior to issuance all permits and licenses 19 dependent on, or affected by, the Planning Code administers by the Planning Department. 20 Planning Commission members are appointed by the Mayor and the President of the Board of 21 Supervisors to help plan for growth and development in San Francisco, and advise the Mayor, 22 City Council and City departments on San Francisco's long-range goals, policies and programs 23 on a broad array of issues related to land use, transportation, and neighborhood planning. 24 Additionally, the Planning Commission has specific responsibility for the stewardship and 25 maintenance of the San Francisco's General Plan. The Planning Commission and its members 26 are sued here in their official capacities. 27 28 20. Respondent and Defendant SAN FRANCISCO PLANNING DEPARTMENT (“Planning Department”) is a local agency of the City and County of San Francisco. The 8 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 Planning Department provides guidance and oversight to the SFMTA on all CEQA 2 environmental review processes. The Planning Department issued a Categorical Exemption on 3 January 9, 2014, finding the Project exempt from CEQA review under CEQA’s Class 6, 4 Information Collection categorical exemption (14 CCR § 15306). The Planning Department and 5 its members are sued here in their official capacities. 6 21. Respondent and Defendant MAYOR EDWIN M. LEE (“Mayor Lee”) is the chief 7 executive officer and the official representative of the City and County. The Mayor has 8 responsibility for general administration and oversight of all departments and governmental units 9 in the executive branch of the City and County, as well as coordination of all intergovernmental 10 activities of the City and County. The Mayor has oversight over the City and County’s 11 determination of whether projects within its jurisdiction are consistent with the City and 12 County’s General Plan, Land Use Ordinances, and other applicable laws, including the Shuttle 13 Project. Mayor Lee is sued herein in his official capacity. 14 22. Respondent, Real Party in Interest, and Defendant SAN FRANCISCO 15 MUNICIPAL TRANSPORTATION AGENCY (“SFMTA”) is a local governmental agency of 16 the City and County of San Francisco, overseeing the MUNI, parking and traffic, bicycling, 17 walking and taxis. The SFMTA is the lead agency (“the public agency which has the principal 18 responsibility for carrying out or approving a project”) for CEQA purposes. On January 8, 19 2014, under the authority delegated by the Planning Department, the SFMTA determined that the 20 Project was exempt from environmental review pursuant to 14 CCR § 15306 as a Class 6, 21 Information Collection categorical exemption. The SFMTA is also the Project Applicant and is 22 listed as the “Project Applicant” on the Notice of Exemption filed by the Board of Supervisors 23 following Project approval. The SFMTA and its members are sued herein in their official 24 capacities. 25 23. Respondent and Defendant BOARD OF DIRECTORS OF THE SAN 26 FRANCISCO MUNICIPAL TRANSPORTATION AGENCY (“SFMTA Board”) is a policy- 27 making body appointed by the Mayor that establishes the policies by which the SFMTA 28 operates, and that has the authority to approve the SFMTA budget and set SFMTA policy. On 9 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 January 21, 2014, the SFMTA Board adopted Resolution No. 14-023, which included: (1) 2 SFMTA’s approval of the Project; (2) approval of the January 8, 2014 SFMTA determination 3 that the Project is exempt from environmental review pursuant to the Class 6 exemptions (14 4 CCR 15306; (3) approval of the January 9, 2014 City Planning Department concurrence with 5 SFMTA’s CEQA Determination (“CEQA Concurrence”); and (4) the approval of a motion to 6 suspend Article 4, Section 10 of the SFMTA Board of Directors Rules of Order regarding 7 published notice for implementation of the Project; and (5) amending Transportation Code, 8 Division II to authorize the Shuttle Project. The SFMTA Board and its members are sued herein 9 in their official capacities. 10 24. Petitioners do not know the true names and capacities, whether individual, 11 corporate, associate, or otherwise, of Respondents and Defendants Doe 1 through Doe 10, 12 inclusive, and therefore sue said Respondents under fictitious names. Petitioners will amend this 13 Petition to show their true names and capacities when the same have been ascertained. Each of 14 these respondents is the agent and/or employee of Respondent County, and each performed acts 15 on which this action is based within the course and scope of such Respondent’s agency and/or 16 employment. 17 18 Additional Real Parties in Interest 25. Real Party in Interest and Defendant ALTRANS- TRANSPORTATION 19 MANAGEMENT ASSOCIATION, INC. (“ALTRANS”) is a California corporation with its 20 headquarters in San Jose, California. ALTRANS is a Transportation Demand Management 21 company that specializes in the development and implementation of Vehicle Trip reduction 22 Program services. Petitioners are informed and believe and thereby allege that ALTRANS 23 currently operates commuter shuttle buses in and around the City and County of San Francisco 24 and may apply for a permit under the Project. 25 26. Real Party in Interest and Defendant APPLE, INC. is a California Company, with 26 its headquarters in Cupertino, California. Petitioners are informed and believe and thereby allege 27 that Real Party in Interest and Defendant APPLE, INC. currently operates its own commuter 28 shuttle buses in and around the City and County of San Francisco and may apply for a permit 10 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 under the Project. 2 27. Real Party in Interest and Defendant BAUER’S INTELLIGENT 3 TRANSPORTATION, INC. (“BAUER’S”) is a California Corporation with its headquarters in 4 San Francisco, California. BAUER’S is a luxury ground transportation company. Petitioners are 5 informed and believe and thereupon allege that BAUER’S currently operates commuter shuttle 6 buses in and around the City and County of San Francisco and may apply for a permit under the 7 Project. 8 9 28. Real Party in Interest and Defendant BLACK TIE TRANSPORTATION LLC is a California Limited Liability Company that provides limousine and shuttle services. Petitioners 10 are informed and believe and thereupon allege that BLACK TIE TRANSPORTATION LLC 11 currently operates commuter shuttle buses in and around the City and County of San Francisco 12 and may apply for a permit under the Project. 13 29. Real Party in Interest and Defendant COMPASS TRANSPORTATION, INC. 14 (“COMPASS”) is a California Corporation with its headquarters in South San Francisco, 15 California. COMPASS is a provider of corporate-sponsored employee commuter shuttle 16 services in the San Francisco Bay Area. COMPASS is owned by SuperShuttle, a subsidiary of 17 Veolia Transportation. Petitioners are informed and believe and thereupon allege that 18 COMPASS currently operates commuter shuttle buses in and around the City and County of San 19 Francisco and may apply for a permit under the Project. 20 30. Real Party in Interest and Defendant EL CAMINO CHARTER LINES, INC. is a 21 California Corporation headquartered in South San Francisco. EL CAMINO CHARTER 22 LINES, INC. provides charter buses for the San Francisco Bay Area. Petitioners are informed 23 and believe and thereupon allege that EL CAMINO CHARTER LINES, INC. currently operates 24 commuter shuttle buses in and around the City and County of San Francisco and may apply for a 25 permit under the Project. 26 31. Real Party in Interest and Defendant GENENTECH, INC. is a Delaware 27 Company, with its headquarters in South San Francisco, California. Petitioners are informed and 28 believe and thereupon allege that Real Party in Interest and Defendant GENENTECH, INC. 11 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 currently operates its own commuter shuttle buses in and around the City and County of San 2 Francisco and may apply for a permit under the Project. 3 32. Real Party in Interest and Defendant GOOGLE, INC. is a Delaware Corporation, 4 with its headquarters in Mountain View, California. Petitioners are informed and believe and 5 thereupon allege that Real Party in Interest and Defendant GOOGLE, INC. currently operates its 6 own commuter shuttle buses in and around the City and County of San Francisco and may apply 7 for a permit under the Project. 8 9 33. Real Party in Interest and Defendant HORIZON COACH LINES PAYMASTER LLC (“HORIZON”) is a California limited liability company. HORIZON is a fully owned 10 subsidiary of TRANSPORTATION MANAGEMENT SERVICES, INC. dba MARYLAND 11 TMS, INC., a Maryland corporation. Petitioners are informed and believe and thereupon allege 12 that HORIZON currently operates commuter shuttle buses in and around the City and County of 13 San Francisco and may apply for a permit under the Project. 14 34. Real Party in Interest and Defendant MCCARTHY COOK & CO. is a Delaware 15 corporation, with offices located in San Francisco and Los Angeles, California. Petitioners are 16 informed and believe and thereupon allege that MCCARTHY COOK & CO. currently operates 17 commuter shuttle buses in and around the City and County of San Francisco and may apply for a 18 permit under the Project. 19 35. Real Party in Interest and Defendant MCLEAN CONSULTING SERVICES INC. 20 is a California Company, with its headquarters in Campbell, California. Petitioners are informed 21 and believe and thereupon allege that MCLEAN CONSULTING SERVICES INC. currently 22 operates commuter shuttle buses in and around the City and County of San Francisco and may 23 apply for a permit under the Project. 24 36. Real Party in Interest and Defendant MERCURY TOURS is a California 25 corporation located in South San Francisco, California. Petitioners are informed and believe and 26 thereupon allege that MERCURY TOURS currently operates commuter shuttle buses in and 27 around the City and County of San Francisco and may apply for a permit under the Project. 28 37. Real Party in Interest and Defendant MOBILITY PLUS TRANSPORTATION 12 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 LLC is a California limited liability company with its headquarters in Martinez, California, that 2 provides passenger transportation services. Petitioners are informed and believe and thereupon 3 allege that MOBILITY PLUS TRANSPORTATION LLC currently operates commuter shuttle 4 buses in and around the City and County of San Francisco and may apply for a permit under the 5 Project. 6 38. Real Party in Interest and Defendant PENINSULA TRAFFIC CONGESTION 7 RELIEF ALLIANCE is a public agency organized as a Joint Powers Authority governed by a 8 board of 18 elected officials, one from each of the 17 Alliance member cities and the County of 9 San Mateo, California. Petitioners are informed and believe and thereupon allege that 10 PENINSULA TRAFFIC CONGESTION RELIEF ALLIANCE currently operates commuter 11 shuttle buses in and around the City and County of San Francisco and may apply for a permit 12 under the Project. 13 39. Real Party in Interest and Defendant PURE LUXURY LIMOUSINE SERVICE is 14 a California Corporation, with its headquarters in Petaluma, California. Petitioners are informed 15 and believe and thereupon allege that PURE LUXURY LIMOUSINE SERVICE currently 16 operates commuter shuttle buses in and around the City and County of San Francisco and may 17 apply for a permit under the Project. 18 40. Real Party in Interest and Defendant the REGENTS OF THE UNIVERSITY OF 19 CALIFORNIA (“REGENTS”) is the governing body of the University of California. The 20 REGENTS govern the University of California, including the San Francisco campus of the 21 University of California (“UCSF”). Petitioners are informed and believe and thereupon allege 22 that UCSF currently operates commuter shuttle buses in and around the City and County of San 23 Francisco and may apply for a permit under the Project. 24 41. Real Party in Interest and Defendant RIDEPAL, INC. is a Delaware corporation, 25 with its headquarters in San Francisco, California. Petitioners are informed and believe and 26 thereupon allege that RIDEPAL, INC. currently operates commuter shuttle buses in and around 27 the City and County of San Francisco and may apply for a permit under the Project. 28 42. Real Party in Interest and Defendant ROYAL COACH TOURS is a California 13 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 corporation, with its headquarters in San Jose, California. Petitioners are informed and believe 2 and thereupon allege that ROYAL COACH TOURS currently operates commuter shuttle buses 3 in and around the City and County of San Francisco and may apply for a permit under the 4 Project. 5 43. Real Party in Interest and Defendant the SAN FRANCISCO HEALTH 6 COMMISSION is the governing and policy-making body of the San Francisco Department of 7 Public Health, and manages and controls the City and County hospitals, including the San 8 Francisco General Hospital and Trauma Center. Petitioners are informed and believe and 9 thereupon allege that San Francisco General Hospital and Trauma Center currently operates 10 commuter shuttle buses in and around the City of San Francisco, and may apply for a permit 11 under the Project. 12 44. Real Party in Interest and Defendant SAN FRANCISCO MINIBUS CHARTER 13 CO. is a suspended California corporation, with its headquarters in San Francisco, California. 14 Petitioners are informed and believe and thereupon allege that SAN FRANCISCO MINIBUS 15 CHARTER CO. currently operates commuter shuttle buses in and around the City and County of 16 San Francisco and may apply for a permit under the Project. 17 45. Petitioners are informed and believe, and thereupon allege that Real Party in 18 Interest and Defendant SFO SHUTTLE BUS COMPANY is a California corporation or 19 corporate subsidiary, with its headquarters in San Francisco, California. Petitioners are 20 informed and believe and thereupon allege that SFO SHUTTLE BUS COMPANY currently 21 operates commuter shuttle buses in and around the City and County of San Francisco and may 22 apply for a permit under the Project. 23 46. Real Party in Interest and Defendant TRANSMETRO is a California corporation, 24 with its headquarters in Sam Francisco, California. Petitioners are informed and believe and 25 thereupon allege that TRANSMETRO currently operates commuter shuttle buses in and around 26 the City and County of San Francisco and may apply for a permit under the Project. 27 28 47. Real Party in Interest and Defendant WILLIAMS SONOMA, INC. is a Delaware corporation, with its headquarters in San Francisco, California. Petitioners are informed and 14 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 believe and thereupon allege that WILLIAMS SONOMA, INC. currently operates commuter 2 shuttle buses in and around the City and County of San Francisco and may apply for a permit 3 under the Project. 4 48. Petitioners do not know the true names and capacities, whether individual, 5 corporate, associate, or otherwise, of Real Parties and Defendants Roe 1 through Roe 100, 6 inclusive, and therefore sue said Real Parties under fictitious names. Petitioners will amend this 7 Petition to show their true names and capacities when the same have been ascertained. 8 JURISDICTION AND VENUE 9 49. This Court has jurisdiction over this action pursuant to CCP §§ 526 (injunctive 10 relief), 1060 (declaratory relief), 1085 (traditional mandate), and 1094.5 (administrative 11 mandate); PRC §§ 21168 and 21168.5 (judicial review under CEQA). The Court has jurisdiction 12 to issue declaratory relief pursuant to CCP § 1060 and injunctive relief pursuant to CCP § 525 et 13 seq. 14 50. Venue is proper pursuant to CCP §§ 393 (actions against public officers), 394 15 (actions against a city, county or local agency), and 395 (actions generally) because the 16 Respondents include a local agency of the State of California, and public officers of a local 17 agency of the State of California. Venue is proper in this Court because the causes of action 18 alleged in this Petition arose in the County of San Francisco and the Project will occur within the 19 County of San Francisco and the environmental impacts of the Project will be acutely felt within 20 the County. (CCP §§ 393, 394, 395; Cal. State Parks Foundation v. Super. Ct. (2007) 150 21 Cal.App.4th 826.) 22 51. This petition is timely filed within all applicable statutes of limitations. This 23 action is timely under CEQA because it is filed within 35 days of the Notice of Exemption filed 24 by the City, and within 30 days of the County’s April 1, 2014 decision upholding the SFMTA’s 25 Project Approval. (PRC § 21167(b), (c), (e); 14 CCR § 15112(c)(1).) 26 52. Petitioners performed all conditions precedent to filing this action by complying 27 with the requirements of PRC § 21167.5 by serving prior notice of the complaint in this action. 28 A copy of the written notice and proof of service is attached as Exhibit A to the Petition in this 15 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 action. 53. Pursuant to PRC § 21167.6(b), Petitioners have elected to prepare the record of 3 proceedings in this matter, and are simultaneously filing their notice of intent to prepare said 4 record of proceedings with this complaint. A true and correct copy of Petitioners’ Notice of 5 Intent to Prepare Record is attached to this complaint as Exhibit B. 6 54. Petitioners will provide notice of this action to the Attorney General of the State 7 of California, by serving a copy of this Petition along with a notice of its filing, as required by 8 PRC § 21167.7 and CCP § 388. 9 55. Petitioners have no plain, speedy or adequate remedy in the course of ordinary 10 law unless this Court grants the requested writ of mandate to require Respondents to set aside 11 their exemption determination, approval of the Project, and amendment of the Transportation 12 Code in violation of State law. In the absence of such remedies, Respondents’ decision will 13 remain in effect in violation of state law. 14 15 16 17 PREEMPTION OF PROJECT BY STATE LAW 56. The California Vehicle Code preempts the Shuttle Project, and the City’s adoption of the Project violates the California Constitution. 57. According to the City’s own Budget and Legislative Analyst (“BLA”) and City 18 Attorney, under the State Vehicle Code, “stopping and loading or unloading passengers in a bus 19 zone is illegal for any buses other than those operated by Muni or other transit systems so 20 authorized by SFMTA.” 21 22 58. The prohibition against private shuttles and vehicles stopping in bus zones is codified in Division 11, Chapter 9, Section 22500(i) of the California Vehicle Code: 23 No person shall stop, park, or leave standing any vehicle whether attended 24 or unattended, except when necessary to avoid conflict with other traffic 25 or in compliance with the directions of a peace officer or official traffic 26 control devise, in any of the following places: (i) Except as provided under 27 Section 22500.5, 12 alongside curb space authorized for the loading and 28 unloading of passengers of a bus engaged as a common carrier in local 16 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 transportation when indicated by a sign or red paint on the curb erected or 2 painted by local authorities pursuant to an ordinance. 3 59. “Common carriers in local transportation”, as cited in the Vehicle Code § 4 22500(i) above, are not defined in the Vehicle Code. However, the Public Utilities Code defines 5 “common carriers” as entities that provide transportation to the public or any portion thereof for 6 compensation. This definition appears to exclude shuttles as they are not available to the public 7 for compensation but are restricted to private groups such as a company’s employees in the case 8 of regional commuter shuttles.” 9 60. Vehicle Code § 21 provides: 10 Except as otherwise expressly provided, the provisions of this code are 11 applicable and uniform throughout the State and in all counties and 12 municipalities therein, and no local authority shall enact or enforce any 13 ordinance on the matters covered by this code unless expressly authorized 14 herein. 15 61. Vehicle Code § 42001.5 imposes a minimum $250 fine on a person “convicted” 16 of violating Vehicle Code § 22500. Vehicle Code § 42001.5(b) provides that the fine cannot be 17 suspended, except that the court can waive anything above $100, meaning the minimum fine 18 allowed under state law is $100. 19 62. Article XI, § 7 of the California Constitution provides that “A county or City may 20 make and enforce within its limits all local, police, sanitary, and other ordinances and regulations 21 not in conflict with general laws.” 22 63. The California Supreme Court has specifically held that cities (including charter 23 cities) may not enact ordinances that violate the State Vehicle Code. O’Connell v. City of 24 Stockton (2007) 41 Cal.4th 1061, 1074. 25 26 27 28 64. The Shuttle Project expressly allows private shuttle operators to stop in public bus stops if they make a payment of $1, an action that is expressly prohibited by State law. 65. Since the Shuttle Project is illegal under State law, the City is without power to authorize the Project. By amending the City’s Transportation Ordinance, the City attempted to 17 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 make legal activities that are illegal under State law, and in doing so violated the State 2 Constitution. 3 4 66. By approving the Project and amending the City’s Transportation Ordinance, the City failed to proceed in a manner required by law. 5 6 7 8 9 CEQA LEGAL BACKGROUND 67. CEQA mandates that “the long-term protection of the environment . . . shall be the guiding criterion in public decisions” throughout California. PRC § 21001(d). 68. CEQA is intended to provide the fullest possible protection to the environment. 10 CEQA requires that a lead agency prepare and certify an EIR for any discretionary project that 11 may have a significant adverse effect on the environment. (PRC §§21002.1(a), 21100(a), 12 21151(a); 14 CCR §§15064(a)(1), (f)(1), 15367 (“lead agency” is the “public agency which has 13 the principal responsibility for carrying out or approving a project”).) “[CEQA] requires the 14 preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that 15 the project may have a significant environmental impact.” (No Oil, Inc. v. City of Los Angeles 16 (1974) 13 Cal.3d 68, 75; see Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 17 988, 1002; PRC §21080(c)-(d). ) The “fair argument” standard establishes a low threshold for 18 requiring the preparation of an EIR. (No Oil, Inc., 13 Cal.3d at 75; Sundstrom v. County of 19 Mendocino (1988) 202 Cal.App.3d 296, 310.) 20 69. Impacts to human health are significant under CEQA. A project has significant 21 impact under CEQA if it “will cause substantial adverse effects on human beings, either directly 22 or indirectly.” (PRC § 21083(b)(3).) 23 70. “The purpose of an [EIR] is to provide public agencies and the public in general 24 with detailed information about the effect which a proposed project is likely to have on the 25 environment; to list ways in which the significant effects of such a project might be minimized; 26 and to indicate alternatives to such a project.” (PRC § 21061; see also §21002.1.) An EIR 27 “serves not only to protect the environment but also to demonstrate to the public that it is being 28 protected.” (14 CCR §15003(b).) “The EIR process protects not only the environment but also 18 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 informed self-government.” (Laurel Heights Improvement Ass’n v. Regents of the University of 2 California (1988) 47 Cal.3d 376, 392.) “The EIR process will enable the public to determine the 3 environmental and economic values of their elected and appointed officials thus allowing for 4 appropriate action come election day should a majority of voters disagree.” (People v. County of 5 Kern (1974) 39 Cal.App.3d 830, 842.) 6 71. A “project” is “the whole of an action” directly undertaken, supported, or 7 authorized by a public agency “which may cause either a direct physical change in the 8 environment, or a reasonably foreseeable indirect physical change in the environment. (PRC § 9 21065; 14 CCR § 15378(a).) For this reason, CEQA is concerned with an action’s ultimate 10 “impact on the environment.” (Bozung v. LAFCO (1975) 13 Cal.3d 263, 283.) CEQA requires 11 environmental factors be considered at the “earliest possible stage . . . before [the project] gains 12 irreversible momentum,” (Id. at 277), “at a point in the planning process where genuine 13 flexibility remains.” (Sundstrom v. Mendocino County (1988) 202 Cal.App.3d 296, 307.) 14 72. CEQA identifies certain classes of projects, called categorical exemptions, which 15 are exempt from the provisions of CEQA. (PRC §21084(a);14 CCR §§ 15300, 15354.) 16 Categorical exemptions are certain classes of activities that generally do not have a significant 17 effect on the environment. (Id.) Public agencies utilizing such exemptions must support their 18 determination with substantial evidence. (PRC § 21168.5) 19 73. Exemptions to CEQA, are narrowly construed and “[e]xemption categories are 20 not to be expanded beyond the reasonable scope of their statutory language.” (Mountain Lion 21 Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 125.) A reviewing court must 22 “scrupulously enforce all legislatively mandated CEQA requirements.” (Citizens of Goleta 23 Valley v. Bd. of Supervisors (1990) 52 Cal.3d 553, 564.) 24 74. In addition to the limitation that categorical exemptions be narrowly construed, 25 CEQA also provides an “unusual circumstances” exception to categorical exemptions. CEQA 26 Guidelines section 15300.2, subdivision (c) provides, “A categorical exemption shall not be used 27 for an activity where there is a reasonable possibility that the activity will have a significant 28 effect on the environment due to unusual circumstances.” “[A] categorical exemption represents 19 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 a determination … that a particular project does not have a significant effect on the environment. 2 (PRC § 21084.) It follows that an activity that may have a significant effect on the environment 3 cannot be categorically exempt.” (Mountain Lion Foundation, 16 Cal.4th at 124.) 4 75. The test for whether a project presents unusual circumstances is whether “the 5 circumstances of a particular project (i) differ from the general circumstances of the projects 6 covered by a particular categorical exemption, and (ii) those circumstances create an 7 environmental risk that does not exist for the general class of exempt projects.” (Azusa Land 8 Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1207.) 9 76. In determining the existence of an unusual circumstance, courts look to whether 10 additional environmental risks are presented by the proposed project. (Ass’n for Protection of 11 Envtl. Values v. City of Ukiah (1991) 2 Cal. App. 4th 720.) Additionally, the scope and size of a 12 project can be a potential unusual circumstance. (Voices for Rural Living v. El Dorado 13 Irrigation Dist. (2012) 209 Cal. App. 4th 1096, 1108-14). 14 77. Erroneous reliance by the City on a categorical exemption constitutes a 15 prejudicial abuse of discretion and a violation of CEQA. (Azusa Land Reclamation Co. v. Main 16 San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1192.) 17 78. Under CEQA, abuse of discretion is established if the agency has not proceeded 18 in a manner required by law or if the determination or decision is not supported by substantial 19 evidence. (PRC §§ 21168.5.) Substantial evidence is defined as “enough relevant information 20 and reasonable inferences from this information that a fair argument can be made to support a 21 conclusion, even though other conclusions might also be reached.” (14 CCR § 15384(a).) 22 Substantial evidence includes facts, reasonable assumptions predicated on facts, and expert 23 opinion supported by facts; however, it does not include argument, speculation, or 24 unsubstantiated opinion or narrative. (PRC §§ 21080(e), 21082.2(c).) 25 79. Respondents are proceeding with implementation of the Shuttle Project. 26 Implementation of the Project will irreparably harm the environment in that the Project will 27 commence and/or continue to release pollution and degrade air quality without adequate 28 mitigations, and present risks to pedestrian and bicycle safety, and result in displacement of 20 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 members of the community without sufficient mitigations and management practices in place, 2 resulting in significant environmental impacts to Petitioners and their members. A temporary 3 restraining order and preliminary and permanent injunctions should issue restraining 4 Respondents from proceeding with the Project relying upon the exemption. 5 6 7 8 9 CEQA STATEMENT OF FACTS 80. The City abused its discretion and violated CEQA by exempting the Shuttle Project from environmental review. 81. On January 21, 2014, the SFMTA Board of Directors approved the Project and 10 adopted a Notice of Exemption (“NOE”), contending that the Shuttle Project was exempt entirely 11 from all CEQA review pursuant to the Class 6 Exemption (14 CCR § 15306) for “Information 12 Collection” activities. The CEQA Guidelines state: 13 Class 6 consists of basic data collection, research, experimental management and 14 resource evaluation activities which do not result in a serious or major disturbance 15 to an environmental resources. These may be strictly for information gathering 16 purposes, or as part of a study leading to an action which a public agency has not 17 yet approved, adopted, or funded. (14 CCR § 15306.) 18 82. On April 1, 2014, the Board of Supervisors approved the Project by affirming the 19 SFMTA Board’s Approval Action, including the determination that the Project is exempt from 20 environmental review. The City approved the exemption on the basis that the “project consists 21 of basic data collection, research, experimental management, and resource evaluation activities 22 which do not result in a serious or major disturbance to an environmental resources.” (Board 23 NOE, p. 2.) 24 83. The Class 6 Information Collection exemption, on its face, is not applicable to the 25 Shuttle Project because it is not an “information collection” activity, and because the Project will 26 result in a “serious or major disturbance to an environmental resource.” 27 28 84. The Shuttle Project goes far beyond mere “information collection.” Common examples of Class 6 exemptions include scientific research projects involving test wells, water 21 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 quality surveys, and similar limited research projects. 2 85. The City’s own guidance document, Categorical Exemptions from CEQA, 3 provides that the Information Collection exemption “is for the most part non-physical, but it also 4 includes such activities as test borings; soil, water, and vegetation sampling; and materials 5 testing in facilities and structures.” (Categorical Exemptions from CEQA, Revised and Adopted 6 by the San Francisco Planning Commission, Resolution No. 14952, August 17, 2000, p. 13.) 7 86. In contrast to these basic information collection activities discussed in the City’s 8 CEQA guidance document, the Shuttle Project is a full-scale commuter shuttle program 9 involving over 200 stops throughout the City, having more than 35,000 boardings each day. 10 87. By approving the Project under the “information collection” exemption, the City 11 violated CEQA’s mandate that categorical exemptions are construed narrowly and are limited to 12 their terms. (Castaic Lake Water Agency v. City of Santa Clarita (1995) 41 Cal.App.4th 1257, 13 1268.) 14 88. Furthermore, on its face, the Class 6 exemption does not apply if the activity will 15 “result in a serious or major disturbance to an environmental resource.” (14 CCR § 15306.) 16 Expert analysis in the record supports a fair argument that the Project has significant impacts on 17 air quality, cancer risk, traffic, pedestrian and bicycle safety, and displacement. As such, the 18 Class 6 exemption does not apply by its own terms. The City’s decision to exempt the Shuttle 19 Project from CEQA review based on the Class 6 exemption was inconsistent with the terms of 20 the exemption and not supported by substantial evidence. 21 89. Not only does the Class 6 exemption not apply based on its terms, the exemption 22 is also inapplicable to the Project because “an activity that may have a significant effect on the 23 environment cannot be categorically exempt.” (Salmon Protectors v. County of Marin (2004) 24 125 Cal.App.4th 1098, 1107.) 25 90. Even assuming, arguendo, that the Shuttle Project did fall under the terms of the 26 Class 6 exemption, CEQA’s “unusual circumstances” exception prohibited use of a categorical 27 exemption. A categorical exemption cannot be used for an activity where there is a reasonable 28 22 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 possibility that the activity will have a significant effect on the environment due to “unusual 2 circumstances.” (14 CCR § 15300.2(c).) 3 4 91. The Project is not exempt because there is a fair argument that the Project will have significant impacts due to unusual circumstances. 5 92. The Shuttle Project is unusual because of the scale and type of project, and 6 because it presents additional environmental risks not normally caused by “information 7 collection” projects. 8 9 93. Specifically, collecting data does not usually involve the moving of more than 350 shuttle vehicles, having more than 35,000 boardings every day. The scale of the Shuttle 10 Project is an unusual circumstance, in that it is larger than many transit programs for small cities. 11 The Shuttle Project is also an unusual circumstance because the Project is illegal under State law. 12 94. Further, it is an “unusual circumstance” that the Shuttle Project will produce air 13 pollution, increase cancer risks, have the potential to displace low and moderate-income workers, 14 and impact pedestrian and bicyclist safety. Most “information collection” projects, such as soil, 15 water and vegetation sampling, do not have these impacts. 16 95. “Basic data collection” and “resource evaluation activities” are normally 17 performed by professional staff, and usually provide data from which environmental decisions 18 can be made. Usually, such activities do not have significant environmental impacts. 19 96. Substantial evidence in the record demonstrates that there is a reasonable 20 possibility that the Shuttle Project will have a significant effect on the environment due to these 21 unusual circumstances, thereby precluding reliance on the Class 6 Exemption. 22 Air Quality Impacts 23 97. The City failed to analyze the potentially significant emissions of diesel engine 24 exhaust produced as a result of the Shuttle Project. An EIR must analyze “the health 25 consequences that necessarily result from the identified adverse air quality impacts.” 26 (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th at 1219- 27 20.) 28 23 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 98. Atmospheric scientists from Soil, Water, Air Protection Enterprise (“SWAPE”) 2 conducted a detailed analysis of diesel engine exhaust generated by the Shuttle Project. SWAPE 3 analyzed six different exposure scenarios involving various bus idle times and distances from the 4 buses to nearby residential properties. According to SWAPE, residents living near shuttle stops 5 will experience an increased cancer risk of approximately 12 per million as a direct result of the 6 Shuttle Project. This increase exceeds by 20% the Bay Area Air Quality Management District’s 7 (“BAAQMD”) CEQA significance threshold for airborne cancer risks of 10 per million. 8 99. Certified traffic engineer Tom Brohard, PE, concluded that the Shuttle Project is 9 likely to increase idle times, which would in turn produce greater emissions of diesel engine 10 exhaust. Currently, shuttle operators often attempt to clear MUNI red zones quickly to avoid 11 substantial tickets. Since the Shuttle Project purports to make it legal for private shuttles to 12 block public bus stops, the shuttles are likely to stop and idle at the bus stops for longer periods 13 of time. 14 100. Since the Shuttle Project will create a cancer risk that exceeds the formally 15 adopted BAAQMD CEQA significance threshold, this impact must be analyzed under CEQA so 16 that mitigation measures can be developed. 17 Pedestrian and Bicycle Safety 18 101. Despite substantial evidence in the record, the City failed to analyze the risks to 19 pedestrians and bicyclists presented by the Shuttle Project. Human Impact Partners, a non-profit 20 public policy research organization, prepared a detailed analysis of the Project, and concluded 21 that it will have significant adverse impacts on human health related to pedestrian and bicycle 22 safety. 23 102. The large commuter shuttles often block MUNI stops, bike lanes, and cross- 24 walks, forcing pedestrians boarding buses and crossing streets into traffic lanes. Substantial 25 evidence in the record demonstrates that this has resulted in increased pedestrian and bicycle 26 safety impacts that must be analyzed and mitigated under CEQA. 27 28 24 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 3 4 Delays to Public Transportation 103. Despite substantial evidence in the record, the City failed to analyze the Project’s impacts on and delays to public transportation as a result of the Project. 104. Observations by a San Francisco County Transportation Authority consultant at 5 15 bus zones used by shuttles and MUNI vehicles found an average of .48 conflicts occurred 6 every hour in which either a MUNI vehicle or a shuttle could not access the bus zone because 7 they were blocked by the other. These and other impacts to the public transportation system 8 must be analyzed and mitigated under CEQA. 9 10 Displacement of People 105. A project has significant impacts requiring CEQA review if it will “displace 11 substantial numbers of people, necessitating the construction of replacement housing.” (CEQA 12 Guidelines, App. G, Section XII.) 13 106. The Shuttle Project is likely to displace numerous residents and commuters who 14 currently live, work, commute, and recreate in the areas proposed for Shuttle stops, and replace 15 them with workers from the private technical companies sponsoring the shuttles, who are 16 wealthier and less likely to come from communities of color. (See Kamala Harris, Attorney 17 General, “Environmental Justice at the Local and Regional Level,” May 9, 2012.) 18 107. The record contains several studies, constituting substantial evidence that the 19 Shuttle Project results in displacement of low and moderate-income residents by higher-income 20 shuttle riders, and that rents near shuttle stops rise much faster than in other areas. 21 22 23 108. From 2011 through 2013, 69% of no-fault evictions in San Francisco occurred within 4 blocks of a known shuttle stop. 109. Alexandra Goldman of University of California, Berkeley, conducted extensive 24 research and concluded that “Google Shuttles are driving up rental prices within a walking 25 distance (half mile) of five of the shuttle stops.” Goldman concluded that prices have risen much 26 more steeply around Google shuttle stops than in other areas. 27 28 25 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 PROCEDURAL BACKGROUND 110. On January 8, 2014, the SFMTA determined that the Shuttle Project was exempt 3 from environmental review under CEQA. On January 9, 2014, the City Planning Department 4 issued a concurrence with SFMTA’s determination that the Shuttle Project was exempt from 5 environmental review under CEQA. 6 111. The SFMTA Board of Directors held a public hearing on January 21, 2014 to 7 consider approval and implementation of the Project, including approval of the SFMTA staff’s 8 determination that the Project was exempt from CEQA. 9 112. Petitioner Sara Shortt submitted written comments on the Project to the SFMTA 10 Board on January 21, 2014, providing that the Class 6 Exemption is inapplicable to the Project, 11 and requesting the SFMTA Board conduct an environmental review under CEQA. 12 113. Following the hearing, by Resolution No. 14-023, dated January 21, 2014, 13 Respondent SFMTA Board resolved to adopt a categorical exemption for the Project, approve 14 the Project, and amend Transportation Code, Division II to authorize the Shuttle Project, among 15 other things (the “Project Approvals”). 16 17 18 19 20 114. On February 19, Petitioners filed a timely appeal (“Petitioners’ Appeal”) of the SFMTA Board’s Project Approvals to the San Francisco Board of Supervisors. 115. Petitioners’ Appeal was scheduled for a hearing before the San Francisco Board of Supervisors on April 1, 2014. 116. On March 21, 2014, Petitioners submitted extensive written comments to the 21 Board in support of Petitioners’ Appeal, supported by expert analysis, urging the City to require 22 review of the Project under CEQA to analyze the Project’s impacts on displacement, air quality, 23 traffic, pedestrian safety, cancer, and other impacts, and to consider feasible mitigation measures 24 and alternatives. Petitioners’ comments provided that exemption of the Project violated CEQA, 25 and that the Project will have significant environmental impacts. 26 117. On April 1, 2014, the Board of Supervisors held a public hearing on Petitioners’ 27 Appeal of the Project Approvals. Petitioners appeared at the hearing and provided oral 28 comments. 26 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 118. Petitioners also submitted additional written comments to the Board of 2 Supervisors prior to the hearing on April 1, 2014, supported by additional expert analysis, 3 responding to a report issued by the San Francisco Budget and Legislative Analyst on March 31, 4 2014 (“BLA Report”) and a supplemental response letter issued by the Planning Department on 5 March 31, 2014. Petitioners’ April 1, 2014 written comments noted that the BLA Report 6 confirmed almost all of the points made by Petitioners in their March 21, 2014 comment letter. 7 Specifically, the BLA Report noted that the San Francisco County Transportation Agency study 8 reported that 23 percent of observed shuttle stops at 4th and Townsend Street blocked the bike 9 lane at that location. (BLA Report, p. 2.) Petitioners also pointed out that the BLA Report noted 10 that “[c]orrelations between higher rents and higher property appreciation rates in areas adjacent 11 to regional shuttle stops have been found in two recent studies.” 12 13 14 119. Dozens of members of the public and Petitioners submitted oral and written comments at and prior to the April 1, 2014 Board hearing. 120. Despite extensive expert evidence that the Project would have numerous 15 significant environmental impacts peculiar to the Project, and that a Class 6 exemption violated 16 CEQA, on April 1, 2014, the Board voted to deny Petitioners’ Appeal. The Board adopted a 17 Categorical Exemption for the Project and approved the Project based thereon, and upheld the 18 SFMTA Board’s Resolution No. 14-023. 19 121. On April 7, 2014, the City filed and posted a Notice of Exemption for the Shuttle 20 Project with the San Francisco County Clerk. The Notice of Exemption incorrectly determined 21 that the Project will not have a significant effect on the environment. 22 122. Petitioners, other agencies, and other interested groups and individuals 23 participated in the administrative proceedings leading up to Respondents’ approval of the Project 24 and exemption, either by participating in hearings thereon or by submitting letters commenting 25 on the Project or exemption. Petitioners attempted to persuade Respondents that the 26 environmental review exemption and approvals for the Shuttle Project did not comply with the 27 requirements of CEQA, to no avail. Respondents’ approval of the Project, approval of the 28 exemption, and failure to prepare an EIR for the Project is not subject to further administrative 27 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 review by Respondents. Petitioners have availed themselves of all available administrative 2 remedies for Respondents’ violations CEQA. 3 123. Petitioners have no plain, speedy, or adequate remedy in the ordinary course of 4 law within the meaning of CCP § 1086, in that Respondents’ approval of the Shuttle Project and 5 the associated exemption, and failure to prepare an EIR for the Shuttle Project, are not otherwise 6 reviewable in a manner that provides an adequate remedy. Accordingly, Petitioners seek this 7 Court’s review of Respondents’ approval of the Project and exemption of the Project from 8 CEQA, to rectify the violations of CEQA. 9 124. Unless enjoined, Respondents will implement the Project despite their lack of 10 compliance with CEQA, the Vehicle Code, and the California Constitution. Petitioners will 11 suffer irreparable harm by Respondents’ failure to take the required steps to protect the 12 environment. Declaratory relief is appropriate under CCP § 1060, injunctive relief is appropriate 13 under CCP § 525 et seq., and a writ of mandate is appropriate under CCP § 1085 et seq. and 14 1094.5 et seq. and under PRC § 21168.9, to prevent irreparable harm to the environment. 15 125. CEQA contains a strong preference in favor of preparation of an EIR whenever 16 there is a “fair argument” that a proposed project “may have significant adverse environmental 17 impacts.” 18 126. By approving the Project without analyzing it under CEQA, the City failed to 19 consider substantial evidence of significant environmental impacts related to the Project, and 20 wholly failed to consider appropriate mitigation measures to reduce those impacts below 21 significance. 22 23 127. Accordingly, Respondents’ approval of the Project and the associated issuance of a Class 6 Categorical Exemption under CEQA must be set aside. 24 CLAIMS FOR RELIEF 25 FIRST CAUSE OF ACTION 26 (Writ of Mandate – California Vehicle Code § 22500 - CCP § 1085. 27 By All Petitioners and Plaintiffs Against All Respondents and Real Parties in Interest) 28 128. Petitioners hereby reallege and incorporate all of the above paragraphs as if fully 28 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 set forth herein. 129. Article XI, § 7 of the California Constitution provides that “A county or City may 3 make and enforce within its limits all local, police, sanitary, and other ordinances and regulations 4 not in conflict with general laws.” 5 130. The California Supreme Court has held that cities (including charter cities) may 6 not enact ordinances that violate the State Vehicle Code. (O’Connell v. City of Stockton (2007) 7 41 Cal.4th 1061, 1074.) 8 9 10 11 131. Since the Project expressly allows private buses to stop in public bus stops, and since this action is expressly prohibited by State law, the City policy is preempted by State law, and violates Article XI, § 7 of the California Constitution. 132. Respondents exceeded their authority by amending Division II of the San 12 Francisco Transportation Code to establish the Shuttle Project because it violates Division 11, 13 Chapter 9, § 22500(i) and § 42001.5 of the California Vehicle Code. 14 15 133. By approving the Project and amending the City’s Transportation Ordinance in a manner that violates state law, the City failed to proceed in a manner required by law. 16 SECOND CAUSE OF ACTION 17 (Violation of CEQA – Illegal CEQA Exemption; CCP § 1085, PRC § 21168.5. 18 By All Petitioners and Plaintiffs Against All Respondents and Real Parties in Interest) 19 20 21 134. Petitioners hereby reallege and incorporate all of the above paragraphs as if fully set forth herein. 135. Respondents abused their discretion and failed to act in the manner required by 22 law by exempting the Shuttle Project from CEQA review by issuing a Class 6 categorical 23 exemption for the Project. 24 136. The Respondents’ decision to approve the Project based on the Class 6 CEQA 25 exemption is inconsistent with the terms of the exemption and not supported by substantial 26 evidence. The CEQA exemption does not apply on its face because the Shuttle Project is not 27 merely an “information collection” activity, but rather involves the ongoing operation of a 28 commuter shuttle transportation system with more than 35,000 boardings on more than 350 29 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 vehicles, and use of more than 200 MUNI stops throughout the city every day. Additionally, the 2 Class 6 Exemption also does not apply on its face because the Project will result in a “serious or 3 major disturbance to an environmental resource.” 4 137. Respondents further abused their discretion and failed to proceed in a manner 5 required by law because the “unusual circumstances” exception prohibits use of a categorical 6 exemption for the Project. 7 138. Substantial evidence in the record before Respondents at the time the Project was 8 approved demonstrated that the Project will have significant adverse environmental impacts due 9 to unusual circumstances, including, but not limited to: the large scale of the Shuttle Project, the 10 public safety risks to pedestrians and bicyclists, the air quality impacts of the Project, and the 11 Project’s potential to displace low and moderate-income individuals. 12 13 14 139. By exempting the Shuttle Project from CEQA review, Respondents abused their discretion and failed to act in a manner required by law. 140. As a result of the foregoing defects, Respondents prejudicially abused their 15 discretion by issuing a categorical exemption for the Project and approving the Project in 16 reliance on that categorical exemption. 17 18 141. Respondents’ adoption of the categorical exemption and approval of the Shuttle Project must be set aside. 19 THIRD CAUSE OF ACTION 20 (Violation of CEQA – Inadequate Findings; CCP § 1085, PRC §§ 21168, 21168.5. 21 By All Petitioners and Plaintiffs Against All Respondents and Real Parties in Interest) 22 23 24 142. Petitioners hereby reallege and incorporate all of the above paragraphs as if fully set forth herein. 143. CEQA requires that a lead agency’s findings for the approval of a project be 25 supported by substantial evidence in the administrative record. CEQA further requires that a 26 lead agency provide an explanation of how evidence in the record supports the conclusions it has 27 reached. 28 144. Respondents violated CEQA by adopting findings that are inadequate as a matter 30 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 of law in that they are not supported by substantial evidence in the record, including, but not 2 limited to, the finding that the Initial Study shows that there is no substantial evidence that the 3 Shuttle Project is “exempt from environmental review because the project consists of basic data 4 collection, research, experimental management, and resource evaluation activities which do not 5 result in a serious or major disturbance to an environmental resource.” 6 145. As a result of the foregoing defects, Respondents prejudicially abused their 7 discretion by making determinations or adopting findings that do not comply with the 8 requirements of CEQA and approving the Project in reliance thereon. Accordingly, 9 Respondents’ approval of the Shuttle Project and the associated exemption must be set aside. 10 PRAYER 11 WHEREFORE, Petitioners pray for the following relief: 12 1. 13 For a peremptory writ of mandate directing Respondents and Real Parties in Interest to: 14 a. 15 Set aside all amendments to Division II of the San Francisco Transportation Code discussed in this Petition ab initio; 16 b. Set aside the approvals of the Shuttle Project ab initio; 17 c. Set aside the Notice of Exemption for the Shuttle Project ab initio; 18 d. Vacate and set aside the approvals and resolutions adopting the 19 Categorical Exemption for the Project and approving the Project; 20 e. Set aside any and all other actions approving or granting any permits, 21 entitlements, financing, or other approvals referring or related to the 22 Shuttle Project unless and until Respondents have prepared, circulated, 23 and considered a legally adequate CEQA document prior to any 24 subsequent action taken to approve the Project; 25 2. For a preliminary and permanent injunction staying the effect of Respondents’ 26 actions issuing a Notice of Exemption for the Project, approving any permits or other 27 entitlements for the Project, and authorizing any financing for the Project pending the outcome 28 of this proceeding. 31 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 3. For a writ of mandate directing Respondents to suspend any and all activity in 2 furtherance of the Project unless and until Respondents take all necessary steps to bring their 3 actions into compliance with CEQA. 4 4. For a writ of mandate and a declaratory judgment declaring Respondents’ 5 approval of the amendments to Division II of the San Francisco Transportation Code allowing 6 private buses to park in public bus stops to be null and void and contrary to law in violation of 7 Division 11, Chapter 9, § 22500(i) and § 42001.5 of the California Vehicle Code and directing 8 Respondents to vacate and set aside said amendments. 9 5. For a preliminary and permanent injunction directing Respondents and Real 10 Parties in Interest, DOES 1 through 10, inclusive, and ROES 1 through 100, inclusive, to cease 11 and refrain from engaging in any and all activities in furtherance of the Project unless and until 12 Respondents take all necessary steps to bring their actions into compliance with CEQA. 13 6. For a preliminary and permanent injunction directing Respondents and Real 14 Parties in Interest, DOES 1 through 10, inclusive, and ROES 1 through 100, inclusive, to cease 15 and refrain from violating, aiding and abetting the violation of, or failing to enforce California 16 Vehicle Code sections 22500 and 42001.5. 17 7. For the costs of suit. 18 8. For an award of attorneys’ fees pursuant to Code of Civil Procedure §1021.5 and 19 20 any other applicable provisions of law. 9. For any other legal and equitable relief as this Court deems just and proper. 21 22 Dated: May 1, 2014 LOZEAU DRURY LLP 23 24 25 26 ____________________________ Richard T. Drury Rebecca L. Davis Attorneys for Petitioners 27 28 32 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2 VERIFICATION I, Elizabeth “Alysabeth” Alexander, am a Petitioner and Plaintiff in this action. I have 3 read the foregoing Verified Petition for Writ of Mandate and Complaint for Declaratory and 4 Injunctive Relief and know its contents. The facts alleged in the above Petition and Complaint 5 are within my own knowledge and I know these facts to be true, except as to matters alleged 6 therein on information and belief. 7 I declare under penalty of perjury under the laws of the State of California that the above 8 is true and correct and that this declaration is executed on May 1, 2014 at San Francisco, 9 California. 10 11 12 Date: May 1, 2014 ________________________________________ Elizabeth “Alysabeth” Alexander Petitioners and Plaintiffs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 33 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF