Google Bus Commuter Shuttle Lawsuit

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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: [email protected] [email protected] Attorneys for Petitioners and Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO

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, Petitioners and Plaintiffs, vs. 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, Respondents and Defendants.

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) Dept: CEQA Case

1 VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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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.


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Petitioners and Plaintiffs COALITION FOR FAIR, LEGAL AND ENVIRONMENTAL

TRANSIT, SAN FRANCISCANS AGAINST DISPLACEMENT, 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, (collectively, “Petitioners”) petition this Court on their own behalf, on behalf of their

members, on behalf of the general public and in the public interest pursuant to Code of Civil

Procedure (“CCP”) § 1094.5 and Public Resources Code (“PRC”) § 21168, or, in the alternative,

pursuant to CCP § 1085 and PRC § 21168.5, for a writ of mandate, and for declaratory and

injunctive relief directed to Respondents and Defendants the 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, (collectively, “Respondents” or “City”), and Real Party in Interest and Defendant SAN

FRANCISCO MUNICIPAL TRANSPORTATION AGENCY (“SFMTA”). Petitioners are

informed and believe, and thereupon allege, that real parties in interest to this action may include

ALTRANS- TRANSPORTATION MANAGEMENT ASSOCIATION, INC., a California

Corporation; APPLE, INC., a California company; 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 Company; 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 Company; MERCURY TOURS, a California company; MOBILITY PLUS


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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, (collectively, “Real Parties”). By

this verified petition and complaint (“Petition”), Petitioners allege as follows:

INTRODUCTION

1. Petitioners bring this action to challenge the April 1, 2014 decision of Respondent

Board of Supervisors of the City and County of San Francisco’s (“Board”) approval of the

proposed Commuter Shuttle Pilot Program (“Shuttle Project” or “Project”) proposed by the San

Francisco Municipal Transportation Agency (“SFMTA”), and issuance of a categorical

exemption for the Project, illegally exempting the Project from review under the California

Environmental Quality Act (“CEQA”), Pub. Res. Code (“PRC”) § 21000, et seq. In doing so,

the Board voted to uphold the January 21, 2014 decision of the Respondent Board of Directors of

the SFMTA approving Resolution No. 14-023: (1) issuing a categorical exemption for the

Project, (2) approving the Project, and (3) amending Division II of the Transportation Code to

authorize the Project, and the decision of Respondent San Francisco Planning Department

finding the Project to be exempt from CEQA review (collectively, the “Project Approval”).

2. The Shuttle Project establishes a pilot permit program to authorize certain private

commuter shuttle buses to stop in bus stops designated for San Francisco’s Municipal transit

system (“MUNI”) for the purpose of loading or unloading passengers, and establishing a fee for

such permits, and penalties for permit violations. These shuttles are closed systems that provide

service to a specific population and are not open to the general public.

3. Prior to Project Approval, most private commuter shuttle buses were acting


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illegally, using public bus stops (“MUNI stops”) to load and unload passengers in violation of

State law and the San Francisco Municipal Code. MUNI stops are designated by a red curb,

which prohibits parking and stopping by private vehicles, including commuter shuttles.

4. On an average weekday, these illegal commuter shuttles (“Illegal Shuttles”) have

more than 35,000 boardings per day, on more than 350 shuttle vehicles, and use more than 200

MUNI stops around the City.

5. The City has allowed these Illegal Shuttles to operate illegally. While California

Vehicle Code § 22500 prohibits use of MUNI stops by private vehicles and requires a minimum

fine of $100, the City is not actively enforcing the state law against the Illegal Shuttles.

Inconsistent with this provision of state law, the Shuttle Project allows Illegal Shuttles to obtain a

permit that would allow shuttles to use over 200 designated MUNI stops for a fee of only $1 per

stop, per day.

6. As part of the Project, the City plans to solicit input from shuttle service providers

and the public about which stops to include in the Project. SFMTA would then select

approximately 200 Muni stops for shared use.

7. A shuttle bus program that involves 35,000 daily boardings, 350 vehicles, and

over 200 stops, requires CEQA review to determine the environmental impacts of the program,

to determine ways to mitigate those impacts, and to analyze alternative routes, vehicles and fuels

that would minimize the impacts of the Project. Indeed, the City is currently conducting CEQA

review for SFMTA’s own Transit Effectiveness Project, which involves re-routing certain MUNI

lines and other measures. (http://www.sfmta.com/projects-planning/projects/tep-transit-

effectiveness-project.)

8. Nevertheless, while the City is conducting full CEQA review for MUNI’s own

Transit Effectiveness Project, the City at the same time decided to exempt the private Illegal

Shuttles entirely from all CEQA review. Rather than preparing an EIR (or even a negative

declaration), Respondents instead issued a Notice of Exemption for the Shuttle Project.

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


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exempt the Shuttle Project from CEQA review based on the Class 6 Exemption was inconsistent

with the terms of the exemption and was not supported by substantial evidence.

10. The Class 6 Exemption, on its face, is not applicable to the Project because the

Project does not meet the criteria for the exemption because the Shuttle Project involves much

more than mere “information collection,” including changing the location of shuttle stops and

authorizing activities currently illegal under State law.

11. Respondents’ reliance on a categorical exemption to approve the Project was also

improper because substantial evidence in the record supports a fair argument that the Project will

result in significant environmental impacts, including air pollution, impacts to pedestrian and

bicyclist safety, delays to public transportation systems, and displacement of low and moderate-

income members of the community that live and work in areas near proposed shuttle stops.

These types of environmental impacts do not usually occur as a result of “information collection”

activities.

12. By failing to perform any CEQA review of the Project, by issuing a categorical

exemption for the Project, and by adopting amendments to the San Francisco Transportation

Code in a manner inconsistent with the California Vehicle Code, Respondents failed to proceed

in a manner required by law.

PARTIES

Petitioners and Plaintiffs

13. Petitioner and Plaintiff COALITION FOR FAIR, LEGAL AND

ENVIRONMENTAL TRANSIT (“Coalition”), is a non-profit unincorporated association based

in the City and County of San Francisco, and comprised of San Francisco residents who are

concerned about gentrification and displacement in San Francisco, which is fueled in part by the

Illegal Shuttles. Coalition members have watched as long-time low and middle-income residents

of San Francisco have been displaced by wealthy technology workers, many of whom ride the

Illegal Shuttles to and from work in the South Bay. The Coalition is concerned about the failure

of the City to conduct CEQA review for the Shuttle Project to analyze and mitigate impacts

including displacement, air pollution, pedestrian and bicycle safety impacts and other impacts.


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Members of the Coalition presented comments to the Board of Supervisors requesting review of

the Project under CEQA. The interests of the Coalition are unique, will be directly impacted by

the Project, and are not adequately represented by other parties.

14. SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL UNION 1021

("SEIU Local 1021"), is a non-profit public and private service employees' union with over 6,000

members living in the City and County of San Francisco. SEIU Local 1021 is concerned that its

members are being forced out of the City in part as a result of Illegal Shuttles. SEIU Local 1021

is also concerned that its members are being exposed to air pollution, pedestrian and bicycle

safety risks, and other impacts of the Shuttle Project. SEIU Local 1021 and many of its members

urged the City to conduct CEQA review of the Shuttle Project to analyze and mitigate these

impacts. The interests of SEIU Local 1021 members are unique and will be directly impacted

by the Project. Their interests are not adequately represented by other parties.

15. Petitioner and Plaintiff SARA SHORTT is a concerned citizen who resides in the

City and County of San Francisco, California. Ms. Shortt presented written and oral comments

to the City during the administrative process on the matters being challenged in the Petition. Ms.

Shortt is deeply concerned with the impacts of the Shuttle Project, including displacement of low

and moderate income persons, air pollution, pedestrian and bicycle safety risks, and interference

with MUNI buses. Ms. Shortt urged the City to conduct CEQA review of the Project to analyze

and mitigate these impacts.

16. Petitioner and Plaintiff ELIZABETH ALEXANDER is a concerned citizen who

resides in the City and County of San Francisco, California. Ms. Alexander has a direct and

beneficial interest in Respondents’ compliance with the laws bearing upon approval of the

Project. Ms. Alexander has been and will be directly and adversely affected by Respondents’

approval of the Project and the significant and unmitigated environmental impacts relating to the

City’s illegal approval of the Project in violation of CEQA. Ms. Alexander is concerned about

displacement of low and moderate income workers and residents of San Francisco as a result of

the Illegal Shuttles. She is also concerned about exposure to air pollution, pedestrian and bicycle

safety risks, and other impacts of the Shuttle Project.


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Respondents and Defendants

17. Respondent and Defendant CITY AND COUNTY OF SAN FRANCISCO (“City

and County”) is a municipal corporation in whose jurisdiction the proposed project will be

located, with its headquarters in San Francisco, California. The City and County has principal

responsibility for determining whether projects within its jurisdiction are consistent with the City

and County’s General Plan, Land Use Ordinances, and other applicable laws.

18. Respondent and Defendant BOARD OF SUPERVISORS OF THE CITY AND

COUNTY OF SAN FRANCISCO (“Board”) serves as the legislative body of the City and

County of San Francisco for the planning and provision of services related to public needs and

the requirements of state laws. As the elected representatives of the people of San Francisco

City and County, the Board establishes overall city and county priorities and sets policy.

Respondent Board is the governing body of the City and County and is ultimately responsible for

reviewing and approving or denying the Project. The Board and its members are sued here in

their official capacities. The Board voted on April 1, 2014 to approve the Project and to exempt

the Project entirely from all CEQA review.

19. Respondent and Defendant PLANNING COMMISSION OF THE CITY AND

COUNTY OF SAN FRANCISCO (“Planning Commission”) is a commission of the City and

County of San Francisco, with jurisdiction to approve prior to issuance all permits and licenses

dependent on, or affected by, the Planning Code administers by the Planning Department.

Planning Commission members are appointed by the Mayor and the President of the Board of

Supervisors to help plan for growth and development in San Francisco, and advise the Mayor,

City Council and City departments on San Francisco's long-range goals, policies and programs

on a broad array of issues related to land use, transportation, and neighborhood planning.

Additionally, the Planning Commission has specific responsibility for the stewardship and

maintenance of the San Francisco's General Plan. The Planning Commission and its members

are sued here in their official capacities.

20. Respondent and Defendant SAN FRANCISCO PLANNING DEPARTMENT

(“Planning Department”) is a local agency of the City and County of San Francisco. The


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Planning Department provides guidance and oversight to the SFMTA on all CEQA

environmental review processes. The Planning Department issued a Categorical Exemption on

January 9, 2014, finding the Project exempt from CEQA review under CEQA’s Class 6,

Information Collection categorical exemption (14 CCR § 15306). The Planning Department and

its members are sued here in their official capacities.

21. Respondent and Defendant MAYOR EDWIN M. LEE (“Mayor Lee”) is the chief

executive officer and the official representative of the City and County. The Mayor has

responsibility for general administration and oversight of all departments and governmental units

in the executive branch of the City and County, as well as coordination of all intergovernmental

activities of the City and County. The Mayor has oversight over the City and County’s

determination of whether projects within its jurisdiction are consistent with the City and

County’s General Plan, Land Use Ordinances, and other applicable laws, including the Shuttle

Project. Mayor Lee is sued herein in his official capacity.

22. Respondent, Real Party in Interest, and Defendant SAN FRANCISCO

MUNICIPAL TRANSPORTATION AGENCY (“SFMTA”) is a local governmental agency of

the City and County of San Francisco, overseeing the MUNI, parking and traffic, bicycling,

walking and taxis. The SFMTA is the lead agency (“the public agency which has the principal

responsibility for carrying out or approving a project”) for CEQA purposes. On January 8,

2014, under the authority delegated by the Planning Department, the SFMTA determined that the

Project was exempt from environmental review pursuant to 14 CCR § 15306 as a Class 6,

Information Collection categorical exemption. The SFMTA is also the Project Applicant and is

listed as the “Project Applicant” on the Notice of Exemption filed by the Board of Supervisors

following Project approval. The SFMTA and its members are sued herein in their official

capacities.

23. Respondent and Defendant BOARD OF DIRECTORS OF THE SAN

FRANCISCO MUNICIPAL TRANSPORTATION AGENCY (“SFMTA Board”) is a policy-

making body appointed by the Mayor that establishes the policies by which the SFMTA

operates, and that has the authority to approve the SFMTA budget and set SFMTA policy. On


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January 21, 2014, the SFMTA Board adopted Resolution No. 14-023, which included: (1)

SFMTA’s approval of the Project; (2) approval of the January 8, 2014 SFMTA determination

that the Project is exempt from environmental review pursuant to the Class 6 exemptions (14

CCR 15306; (3) approval of the January 9, 2014 City Planning Department concurrence with

SFMTA’s CEQA Determination (“CEQA Concurrence”); and (4) the approval of a motion to

suspend Article 4, Section 10 of the SFMTA Board of Directors Rules of Order regarding

published notice for implementation of the Project; and (5) amending Transportation Code,

Division II to authorize the Shuttle Project. The SFMTA Board and its members are sued herein

in their official capacities.

24. Petitioners do not know the true names and capacities, whether individual,

corporate, associate, or otherwise, of Respondents and Defendants Doe 1 through Doe 10,

inclusive, and therefore sue said Respondents under fictitious names. Petitioners will amend this

Petition to show their true names and capacities when the same have been ascertained. Each of

these respondents is the agent and/or employee of Respondent County, and each performed acts

on which this action is based within the course and scope of such Respondent’s agency and/or

employment.

Additional Real Parties in Interest

25. Real Party in Interest and Defendant ALTRANS- TRANSPORTATION

MANAGEMENT ASSOCIATION, INC. (“ALTRANS”) is a California corporation with its

headquarters in San Jose, California. ALTRANS is a Transportation Demand Management

company that specializes in the development and implementation of Vehicle Trip reduction

Program services. Petitioners are informed and believe and thereby allege that ALTRANS

currently operates commuter shuttle buses in and around the City and County of San Francisco

and may apply for a permit under the Project.

26. Real Party in Interest and Defendant APPLE, INC. is a California Company, with

its headquarters in Cupertino, California. Petitioners are informed and believe and thereby allege

that Real Party in Interest and Defendant APPLE, INC. currently operates its own commuter

shuttle buses in and around the City and County of San Francisco and may apply for a permit


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under the Project.

27. Real Party in Interest and Defendant BAUER’S INTELLIGENT

TRANSPORTATION, INC. (“BAUER’S”) is a California Corporation with its headquarters in

San Francisco, California. BAUER’S is a luxury ground transportation company. Petitioners are

informed and believe and thereupon allege that BAUER’S currently operates commuter shuttle

buses in and around the City and County of San Francisco and may apply for a permit under the

Project.

28. Real Party in Interest and Defendant BLACK TIE TRANSPORTATION LLC is a

California Limited Liability Company that provides limousine and shuttle services. Petitioners

are informed and believe and thereupon allege that BLACK TIE TRANSPORTATION LLC

currently operates commuter shuttle buses in and around the City and County of San Francisco

and may apply for a permit under the Project.

29. Real Party in Interest and Defendant COMPASS TRANSPORTATION, INC.

(“COMPASS”) is a California Corporation with its headquarters in South San Francisco,

California. COMPASS is a provider of corporate-sponsored employee commuter shuttle

services in the San Francisco Bay Area. COMPASS is owned by SuperShuttle, a subsidiary of

Veolia Transportation. Petitioners are informed and believe and thereupon allege that

COMPASS currently operates commuter shuttle buses in and around the City and County of San

Francisco and may apply for a permit under the Project.

30. Real Party in Interest and Defendant EL CAMINO CHARTER LINES, INC. is a

California Corporation headquartered in South San Francisco. EL CAMINO CHARTER

LINES, INC. provides charter buses for the San Francisco Bay Area. Petitioners are informed

and believe and thereupon allege that EL CAMINO CHARTER LINES, INC. currently operates

commuter shuttle buses in and around the City and County of San Francisco and may apply for a

permit under the Project.

31. Real Party in Interest and Defendant GENENTECH, INC. is a Delaware

Company, with its headquarters in South San Francisco, California. Petitioners are informed and

believe and thereupon allege that Real Party in Interest and Defendant GENENTECH, INC.


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currently operates its own commuter shuttle buses in and around the City and County of San


32. Real Party in Interest and Defendant GOOGLE, INC. is a Delaware Corporation,

with its headquarters in Mountain View, California. Petitioners are informed and believe and

thereupon allege that Real Party in Interest and Defendant GOOGLE, INC. currently operates its

own commuter shuttle buses in and around the City and County of San Francisco and may apply

for a permit under the Project.

33. Real Party in Interest and Defendant HORIZON COACH LINES PAYMASTER

LLC (“HORIZON”) is a California limited liability company. HORIZON is a fully owned

subsidiary of TRANSPORTATION MANAGEMENT SERVICES, INC. dba MARYLAND

TMS, INC., a Maryland corporation. Petitioners are informed and believe and thereupon allege

that HORIZON currently operates commuter shuttle buses in and around the City and County of

San Francisco and may apply for a permit under the Project.

34. Real Party in Interest and Defendant MCCARTHY COOK & CO. is a Delaware

corporation, with offices located in San Francisco and Los Angeles, California. Petitioners are

informed and believe and thereupon allege that MCCARTHY COOK & CO. currently operates

commuter shuttle buses in and around the City and County of San Francisco and may apply for a

permit under the Project.

35. Real Party in Interest and Defendant MCLEAN CONSULTING SERVICES INC.

is a California Company, with its headquarters in Campbell, California. Petitioners are informed

and believe and thereupon allege that MCLEAN CONSULTING SERVICES INC. currently

operates commuter shuttle buses in and around the City and County of San Francisco and may

apply for a permit under the Project.

36. Real Party in Interest and Defendant MERCURY TOURS is a California

corporation located in South San Francisco, California. Petitioners are informed and believe and

thereupon allege that MERCURY TOURS currently operates commuter shuttle buses in and

around the City and County of San Francisco and may apply for a permit under the Project.

37. Real Party in Interest and Defendant MOBILITY PLUS TRANSPORTATION


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LLC is a California limited liability company with its headquarters in Martinez, California, that

provides passenger transportation services. Petitioners are informed and believe and thereupon

allege that MOBILITY PLUS TRANSPORTATION LLC currently operates commuter shuttle

buses in and around the City and County of San Francisco and may apply for a permit under the

Project.

38. Real Party in Interest and Defendant PENINSULA TRAFFIC CONGESTION

RELIEF ALLIANCE is a public agency organized as a Joint Powers Authority governed by a

board of 18 elected officials, one from each of the 17 Alliance member cities and the County of

San Mateo, California. Petitioners are informed and believe and thereupon allege that

PENINSULA TRAFFIC CONGESTION RELIEF ALLIANCE currently operates commuter


under the Project.

39. Real Party in Interest and Defendant PURE LUXURY LIMOUSINE SERVICE is

a California Corporation, with its headquarters in Petaluma, California. Petitioners are informed

and believe and thereupon allege that PURE LUXURY LIMOUSINE SERVICE currently



40. Real Party in Interest and Defendant the REGENTS OF THE UNIVERSITY OF

CALIFORNIA (“REGENTS”) is the governing body of the University of California. The

REGENTS govern the University of California, including the San Francisco campus of the

University of California (“UCSF”). Petitioners are informed and believe and thereupon allege

that UCSF currently operates commuter shuttle buses in and around the City and County of San


41. Real Party in Interest and Defendant RIDEPAL, INC. is a Delaware corporation,

with its headquarters in San Francisco, California. Petitioners are informed and believe and

thereupon allege that RIDEPAL, INC. currently operates commuter shuttle buses in and around

the City and County of San Francisco and may apply for a permit under the Project.

42. Real Party in Interest and Defendant ROYAL COACH TOURS is a California


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corporation, with its headquarters in San Jose, California. Petitioners are informed and believe

and thereupon allege that ROYAL COACH TOURS currently operates commuter shuttle buses

in and around the City and County of San Francisco and may apply for a permit under the

Project.

43. Real Party in Interest and Defendant the SAN FRANCISCO HEALTH

COMMISSION is the governing and policy-making body of the San Francisco Department of

Public Health, and manages and controls the City and County hospitals, including the San

Francisco General Hospital and Trauma Center. Petitioners are informed and believe and

thereupon allege that San Francisco General Hospital and Trauma Center currently operates

commuter shuttle buses in and around the City of San Francisco, and may apply for a permit

under the Project.

44. Real Party in Interest and Defendant SAN FRANCISCO MINIBUS CHARTER

CO. is a suspended California corporation, with its headquarters in San Francisco, California.

Petitioners are informed and believe and thereupon allege that SAN FRANCISCO MINIBUS

CHARTER CO. currently operates commuter shuttle buses in and around the City and County of

San Francisco and may apply for a permit under the Project.

45. Petitioners are informed and believe, and thereupon allege that Real Party in

Interest and Defendant SFO SHUTTLE BUS COMPANY is a California corporation or

corporate subsidiary, with its headquarters in San Francisco, California. Petitioners are

informed and believe and thereupon allege that SFO SHUTTLE BUS COMPANY currently



46. Real Party in Interest and Defendant TRANSMETRO is a California corporation,

with its headquarters in Sam Francisco, California. Petitioners are informed and believe and

thereupon allege that TRANSMETRO currently operates commuter shuttle buses in and around

the City and County of San Francisco and may apply for a permit under the Project.

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


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believe and thereupon allege that WILLIAMS SONOMA, INC. currently operates commuter


under the Project.

48. Petitioners do not know the true names and capacities, whether individual,

corporate, associate, or otherwise, of Real Parties and Defendants Roe 1 through Roe 100,

inclusive, and therefore sue said Real Parties under fictitious names. Petitioners will amend this

Petition to show their true names and capacities when the same have been ascertained.

JURISDICTION AND VENUE

49. This Court has jurisdiction over this action pursuant to CCP §§ 526 (injunctive

relief), 1060 (declaratory relief), 1085 (traditional mandate), and 1094.5 (administrative

mandate); PRC §§ 21168 and 21168.5 (judicial review under CEQA). The Court has jurisdiction

to issue declaratory relief pursuant to CCP § 1060 and injunctive relief pursuant to CCP § 525 et

seq.

50. Venue is proper pursuant to CCP §§ 393 (actions against public officers), 394

(actions against a city, county or local agency), and 395 (actions generally) because the

Respondents include a local agency of the State of California, and public officers of a local

agency of the State of California. Venue is proper in this Court because the causes of action

alleged in this Petition arose in the County of San Francisco and the Project will occur within the

County of San Francisco and the environmental impacts of the Project will be acutely felt within

the County. (CCP §§ 393, 394, 395; Cal. State Parks Foundation v. Super. Ct. (2007) 150

Cal.App.4th 826.)

51. This petition is timely filed within all applicable statutes of limitations. This

action is timely under CEQA because it is filed within 35 days of the Notice of Exemption filed

by the City, and within 30 days of the County’s April 1, 2014 decision upholding the SFMTA’s

Project Approval. (PRC § 21167(b), (c), (e); 14 CCR § 15112(c)(1).)

52. Petitioners performed all conditions precedent to filing this action by complying

with the requirements of PRC § 21167.5 by serving prior notice of the complaint in this action.

A copy of the written notice and proof of service is attached as Exhibit A to the Petition in this


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action.

53. Pursuant to PRC § 21167.6(b), Petitioners have elected to prepare the record of

proceedings in this matter, and are simultaneously filing their notice of intent to prepare said

record of proceedings with this complaint. A true and correct copy of Petitioners’ Notice of

Intent to Prepare Record is attached to this complaint as Exhibit B.

54. Petitioners will provide notice of this action to the Attorney General of the State

of California, by serving a copy of this Petition along with a notice of its filing, as required by

PRC § 21167.7 and CCP § 388.

55. Petitioners have no plain, speedy or adequate remedy in the course of ordinary

law unless this Court grants the requested writ of mandate to require Respondents to set aside

their exemption determination, approval of the Project, and amendment of the Transportation

Code in violation of State law. In the absence of such remedies, Respondents’ decision will

remain in effect in violation of state law.

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

Attorney, under the State Vehicle Code, “stopping and loading or unloading passengers in a bus

zone is illegal for any buses other than those operated by Muni or other transit systems so

authorized by SFMTA.”

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:

No person shall stop, park, or leave standing any vehicle whether attended

or unattended, except when necessary to avoid conflict with other traffic

or in compliance with the directions of a peace officer or official traffic

control devise, in any of the following places: (i) Except as provided under

Section 22500.5, 12 alongside curb space authorized for the loading and

unloading of passengers of a bus engaged as a common carrier in local


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transportation when indicated by a sign or red paint on the curb erected or

painted by local authorities pursuant to an ordinance.

59. “Common carriers in local transportation”, as cited in the Vehicle Code §

22500(i) above, are not defined in the Vehicle Code. However, the Public Utilities Code defines

“common carriers” as entities that provide transportation to the public or any portion thereof for

compensation. This definition appears to exclude shuttles as they are not available to the public

for compensation but are restricted to private groups such as a company’s employees in the case

of regional commuter shuttles.”

60. Vehicle Code § 21 provides:

Except as otherwise expressly provided, the provisions of this code are

applicable and uniform throughout the State and in all counties and

municipalities therein, and no local authority shall enact or enforce any

ordinance on the matters covered by this code unless expressly authorized

herein.

61. Vehicle Code § 42001.5 imposes a minimum $250 fine on a person “convicted”

of violating Vehicle Code § 22500. Vehicle Code § 42001.5(b) provides that the fine cannot be

suspended, except that the court can waive anything above $100, meaning the minimum fine

allowed under state law is $100.

62. Article XI, § 7 of the California Constitution provides that “A county or City may

make and enforce within its limits all local, police, sanitary, and other ordinances and regulations

not in conflict with general laws.”

63. The California Supreme Court has specifically held that cities (including charter

cities) may not enact ordinances that violate the State Vehicle Code. O’Connell v. City of

Stockton (2007) 41 Cal.4th 1061, 1074.

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


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make legal activities that are illegal under State law, and in doing so violated the State

Constitution.

66. By approving the Project and amending the City’s Transportation Ordinance, the

City failed to proceed in a manner required by law.

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.

CEQA requires that a lead agency prepare and certify an EIR for any discretionary project that

may have a significant adverse effect on the environment. (PRC §§21002.1(a), 21100(a),

21151(a); 14 CCR §§15064(a)(1), (f)(1), 15367 (“lead agency” is the “public agency which has

the principal responsibility for carrying out or approving a project”).) “[CEQA] requires the

preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that

the project may have a significant environmental impact.” (No Oil, Inc. v. City of Los Angeles

(1974) 13 Cal.3d 68, 75; see Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d

988, 1002; PRC §21080(c)-(d). ) The “fair argument” standard establishes a low threshold for

requiring the preparation of an EIR. (No Oil, Inc., 13 Cal.3d at 75; Sundstrom v. County of

Mendocino (1988) 202 Cal.App.3d 296, 310.)

69. Impacts to human health are significant under CEQA. A project has significant

impact under CEQA if it “will cause substantial adverse effects on human beings, either directly

or indirectly.” (PRC § 21083(b)(3).)

70. “The purpose of an [EIR] is to provide public agencies and the public in general

with detailed information about the effect which a proposed project is likely to have on the

environment; to list ways in which the significant effects of such a project might be minimized;

and to indicate alternatives to such a project.” (PRC § 21061; see also §21002.1.) An EIR

“serves not only to protect the environment but also to demonstrate to the public that it is being

protected.” (14 CCR §15003(b).) “The EIR process protects not only the environment but also


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informed self-government.” (Laurel Heights Improvement Ass’n v. Regents of the University of

California (1988) 47 Cal.3d 376, 392.) “The EIR process will enable the public to determine the

environmental and economic values of their elected and appointed officials thus allowing for

appropriate action come election day should a majority of voters disagree.” (People v. County of

Kern (1974) 39 Cal.App.3d 830, 842.)

71. A “project” is “the whole of an action” directly undertaken, supported, or

authorized by a public agency “which may cause either a direct physical change in the

environment, or a reasonably foreseeable indirect physical change in the environment. (PRC §

21065; 14 CCR § 15378(a).) For this reason, CEQA is concerned with an action’s ultimate

“impact on the environment.” (Bozung v. LAFCO (1975) 13 Cal.3d 263, 283.) CEQA requires

environmental factors be considered at the “earliest possible stage . . . before [the project] gains

irreversible momentum,” (Id. at 277), “at a point in the planning process where genuine

flexibility remains.” (Sundstrom v. Mendocino County (1988) 202 Cal.App.3d 296, 307.)

72. CEQA identifies certain classes of projects, called categorical exemptions, which

are exempt from the provisions of CEQA. (PRC §21084(a);14 CCR §§ 15300, 15354.)

Categorical exemptions are certain classes of activities that generally do not have a significant

effect on the environment. (Id.) Public agencies utilizing such exemptions must support their

determination with substantial evidence. (PRC § 21168.5)

73. Exemptions to CEQA, are narrowly construed and “[e]xemption categories are

not to be expanded beyond the reasonable scope of their statutory language.” (Mountain Lion

Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 125.) A reviewing court must

“scrupulously enforce all legislatively mandated CEQA requirements.” (Citizens of Goleta

Valley v. Bd. of Supervisors (1990) 52 Cal.3d 553, 564.)

74. In addition to the limitation that categorical exemptions be narrowly construed,

CEQA also provides an “unusual circumstances” exception to categorical exemptions. CEQA

Guidelines section 15300.2, subdivision (c) provides, “A categorical exemption shall not be used

for an activity where there is a reasonable possibility that the activity will have a significant

effect on the environment due to unusual circumstances.” “[A] categorical exemption represents


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a determination … that a particular project does not have a significant effect on the environment.

(PRC § 21084.) It follows that an activity that may have a significant effect on the environment

cannot be categorically exempt.” (Mountain Lion Foundation, 16 Cal.4th at 124.)

75. The test for whether a project presents unusual circumstances is whether “the

circumstances of a particular project (i) differ from the general circumstances of the projects

covered by a particular categorical exemption, and (ii) those circumstances create an

environmental risk that does not exist for the general class of exempt projects.” (Azusa Land

Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1207.)

76. In determining the existence of an unusual circumstance, courts look to whether

additional environmental risks are presented by the proposed project. (Ass’n for Protection of

Envtl. Values v. City of Ukiah (1991) 2 Cal. App. 4th 720.) Additionally, the scope and size of a

project can be a potential unusual circumstance. (Voices for Rural Living v. El Dorado

Irrigation Dist. (2012) 209 Cal. App. 4th 1096, 1108-14).

77. Erroneous reliance by the City on a categorical exemption constitutes a

prejudicial abuse of discretion and a violation of CEQA. (Azusa Land Reclamation Co. v. Main

San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1192.)

78. Under CEQA, abuse of discretion is established if the agency has not proceeded

in a manner required by law or if the determination or decision is not supported by substantial

evidence. (PRC §§ 21168.5.) Substantial evidence is defined as “enough relevant information

and reasonable inferences from this information that a fair argument can be made to support a

conclusion, even though other conclusions might also be reached.” (14 CCR § 15384(a).)

Substantial evidence includes facts, reasonable assumptions predicated on facts, and expert

opinion supported by facts; however, it does not include argument, speculation, or

unsubstantiated opinion or narrative. (PRC §§ 21080(e), 21082.2(c).)

79. Respondents are proceeding with implementation of the Shuttle Project.

Implementation of the Project will irreparably harm the environment in that the Project will

commence and/or continue to release pollution and degrade air quality without adequate

mitigations, and present risks to pedestrian and bicycle safety, and result in displacement of


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members of the community without sufficient mitigations and management practices in place,

resulting in significant environmental impacts to Petitioners and their members. A temporary

restraining order and preliminary and permanent injunctions should issue restraining

Respondents from proceeding with the Project relying upon the exemption.

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

adopted a Notice of Exemption (“NOE”), contending that the Shuttle Project was exempt entirely

from all CEQA review pursuant to the Class 6 Exemption (14 CCR § 15306) for “Information

Collection” activities. The CEQA Guidelines state:

Class 6 consists of basic data collection, research, experimental management and

resource evaluation activities which do not result in a serious or major disturbance

to an environmental resources. These may be strictly for information gathering

purposes, or as part of a study leading to an action which a public agency has not

yet approved, adopted, or funded. (14 CCR § 15306.)

82. On April 1, 2014, the Board of Supervisors approved the Project by affirming the

SFMTA Board’s Approval Action, including the determination that the Project is exempt from

environmental review. The City approved the exemption on the basis that the “project consists

of basic data collection, research, experimental management, and resource evaluation activities

which do not result in a serious or major disturbance to an environmental resources.” (Board

NOE, p. 2.)

83. The Class 6 Information Collection exemption, on its face, is not applicable to the

Shuttle Project because it is not an “information collection” activity, and because the Project will

result in a “serious or major disturbance to an environmental resource.”

84. The Shuttle Project goes far beyond mere “information collection.” Common

examples of Class 6 exemptions include scientific research projects involving test wells, water


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quality surveys, and similar limited research projects.

85. The City’s own guidance document, Categorical Exemptions from CEQA,

provides that the Information Collection exemption “is for the most part non-physical, but it also

includes such activities as test borings; soil, water, and vegetation sampling; and materials

testing in facilities and structures.” (Categorical Exemptions from CEQA, Revised and Adopted

by the San Francisco Planning Commission, Resolution No. 14952, August 17, 2000, p. 13.)

86. In contrast to these basic information collection activities discussed in the City’s

CEQA guidance document, the Shuttle Project is a full-scale commuter shuttle program

involving over 200 stops throughout the City, having more than 35,000 boardings each day.

87. By approving the Project under the “information collection” exemption, the City

violated CEQA’s mandate that categorical exemptions are construed narrowly and are limited to

their terms. (Castaic Lake Water Agency v. City of Santa Clarita (1995) 41 Cal.App.4th 1257,

1268.)

88. Furthermore, on its face, the Class 6 exemption does not apply if the activity will

“result in a serious or major disturbance to an environmental resource.” (14 CCR § 15306.)

Expert analysis in the record supports a fair argument that the Project has significant impacts on

air quality, cancer risk, traffic, pedestrian and bicycle safety, and displacement. As such, the

Class 6 exemption does not apply by its own terms. The City’s decision to exempt the Shuttle

Project from CEQA review based on the Class 6 exemption was inconsistent with the terms of

the exemption and not supported by substantial evidence.

89. Not only does the Class 6 exemption not apply based on its terms, the exemption

is also inapplicable to the Project because “an activity that may have a significant effect on the

environment cannot be categorically exempt.” (Salmon Protectors v. County of Marin (2004)

125 Cal.App.4th 1098, 1107.)

90. Even assuming, arguendo, that the Shuttle Project did fall under the terms of the

Class 6 exemption, CEQA’s “unusual circumstances” exception prohibited use of a categorical

exemption. A categorical exemption cannot be used for an activity where there is a reasonable


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possibility that the activity will have a significant effect on the environment due to “unusual

circumstances.” (14 CCR § 15300.2(c).)

91. The Project is not exempt because there is a fair argument that the Project will

have significant impacts due to unusual circumstances.

92. The Shuttle Project is unusual because of the scale and type of project, and

because it presents additional environmental risks not normally caused by “information

collection” projects.

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

Project is an unusual circumstance, in that it is larger than many transit programs for small cities.

The Shuttle Project is also an unusual circumstance because the Project is illegal under State law.

94. Further, it is an “unusual circumstance” that the Shuttle Project will produce air

pollution, increase cancer risks, have the potential to displace low and moderate-income workers,

and impact pedestrian and bicyclist safety. Most “information collection” projects, such as soil,

water and vegetation sampling, do not have these impacts.

95. “Basic data collection” and “resource evaluation activities” are normally

performed by professional staff, and usually provide data from which environmental decisions

can be made. Usually, such activities do not have significant environmental impacts.

96. Substantial evidence in the record demonstrates that there is a reasonable

possibility that the Shuttle Project will have a significant effect on the environment due to these

unusual circumstances, thereby precluding reliance on the Class 6 Exemption.

Air Quality Impacts

97. The City failed to analyze the potentially significant emissions of diesel engine

exhaust produced as a result of the Shuttle Project. An EIR must analyze “the health

consequences that necessarily result from the identified adverse air quality impacts.”

(Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th at 1219-

20.)


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98. Atmospheric scientists from Soil, Water, Air Protection Enterprise (“SWAPE”)

conducted a detailed analysis of diesel engine exhaust generated by the Shuttle Project. SWAPE

analyzed six different exposure scenarios involving various bus idle times and distances from the

buses to nearby residential properties. According to SWAPE, residents living near shuttle stops

will experience an increased cancer risk of approximately 12 per million as a direct result of the

Shuttle Project. This increase exceeds by 20% the Bay Area Air Quality Management District’s

(“BAAQMD”) CEQA significance threshold for airborne cancer risks of 10 per million.

99. Certified traffic engineer Tom Brohard, PE, concluded that the Shuttle Project is

likely to increase idle times, which would in turn produce greater emissions of diesel engine

exhaust. Currently, shuttle operators often attempt to clear MUNI red zones quickly to avoid

substantial tickets. Since the Shuttle Project purports to make it legal for private shuttles to

block public bus stops, the shuttles are likely to stop and idle at the bus stops for longer periods

of time.

100. Since the Shuttle Project will create a cancer risk that exceeds the formally

adopted BAAQMD CEQA significance threshold, this impact must be analyzed under CEQA so

that mitigation measures can be developed.

Pedestrian and Bicycle Safety

101. Despite substantial evidence in the record, the City failed to analyze the risks to

pedestrians and bicyclists presented by the Shuttle Project. Human Impact Partners, a non-profit

public policy research organization, prepared a detailed analysis of the Project, and concluded

that it will have significant adverse impacts on human health related to pedestrian and bicycle

safety.

102. The large commuter shuttles often block MUNI stops, bike lanes, and cross-

walks, forcing pedestrians boarding buses and crossing streets into traffic lanes. Substantial

evidence in the record demonstrates that this has resulted in increased pedestrian and bicycle

safety impacts that must be analyzed and mitigated under CEQA.


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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

15 bus zones used by shuttles and MUNI vehicles found an average of .48 conflicts occurred

every hour in which either a MUNI vehicle or a shuttle could not access the bus zone because

they were blocked by the other. These and other impacts to the public transportation system

must be analyzed and mitigated under CEQA.

Displacement of People

105. A project has significant impacts requiring CEQA review if it will “displace

substantial numbers of people, necessitating the construction of replacement housing.” (CEQA

Guidelines, App. G, Section XII.)

106. The Shuttle Project is likely to displace numerous residents and commuters who

currently live, work, commute, and recreate in the areas proposed for Shuttle stops, and replace

them with workers from the private technical companies sponsoring the shuttles, who are

wealthier and less likely to come from communities of color. (See Kamala Harris, Attorney

General, “Environmental Justice at the Local and Regional Level,” May 9, 2012.)

107. The record contains several studies, constituting substantial evidence that the

Shuttle Project results in displacement of low and moderate-income residents by higher-income

shuttle riders, and that rents near shuttle stops rise much faster than in other areas.

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

research and concluded that “Google Shuttles are driving up rental prices within a walking

distance (half mile) of five of the shuttle stops.” Goldman concluded that prices have risen much

more steeply around Google shuttle stops than in other areas.


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PROCEDURAL BACKGROUND

110. On January 8, 2014, the SFMTA determined that the Shuttle Project was exempt

from environmental review under CEQA. On January 9, 2014, the City Planning Department

issued a concurrence with SFMTA’s determination that the Shuttle Project was exempt from

environmental review under CEQA.

111. The SFMTA Board of Directors held a public hearing on January 21, 2014 to

consider approval and implementation of the Project, including approval of the SFMTA staff’s

determination that the Project was exempt from CEQA.

112. Petitioner Sara Shortt submitted written comments on the Project to the SFMTA

Board on January 21, 2014, providing that the Class 6 Exemption is inapplicable to the Project,

and requesting the SFMTA Board conduct an environmental review under CEQA.

113. Following the hearing, by Resolution No. 14-023, dated January 21, 2014,

Respondent SFMTA Board resolved to adopt a categorical exemption for the Project, approve

the Project, and amend Transportation Code, Division II to authorize the Shuttle Project, among

other things (the “Project Approvals”).

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

Board in support of Petitioners’ Appeal, supported by expert analysis, urging the City to require

review of the Project under CEQA to analyze the Project’s impacts on displacement, air quality,

traffic, pedestrian safety, cancer, and other impacts, and to consider feasible mitigation measures

and alternatives. Petitioners’ comments provided that exemption of the Project violated CEQA,

and that the Project will have significant environmental impacts.

117. On April 1, 2014, the Board of Supervisors held a public hearing on Petitioners’

Appeal of the Project Approvals. Petitioners appeared at the hearing and provided oral

comments.


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118. Petitioners also submitted additional written comments to the Board of

Supervisors prior to the hearing on April 1, 2014, supported by additional expert analysis,

responding to a report issued by the San Francisco Budget and Legislative Analyst on March 31,

2014 (“BLA Report”) and a supplemental response letter issued by the Planning Department on

March 31, 2014. Petitioners’ April 1, 2014 written comments noted that the BLA Report

confirmed almost all of the points made by Petitioners in their March 21, 2014 comment letter.

Specifically, the BLA Report noted that the San Francisco County Transportation Agency study

reported that 23 percent of observed shuttle stops at 4th and Townsend Street blocked the bike

lane at that location. (BLA Report, p. 2.) Petitioners also pointed out that the BLA Report noted

that “[c]orrelations between higher rents and higher property appreciation rates in areas adjacent

to regional shuttle stops have been found in two recent studies.”

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

significant environmental impacts peculiar to the Project, and that a Class 6 exemption violated

CEQA, on April 1, 2014, the Board voted to deny Petitioners’ Appeal. The Board adopted a

Categorical Exemption for the Project and approved the Project based thereon, and upheld the

SFMTA Board’s Resolution No. 14-023.

121. On April 7, 2014, the City filed and posted a Notice of Exemption for the Shuttle

Project with the San Francisco County Clerk. The Notice of Exemption incorrectly determined

that the Project will not have a significant effect on the environment.

122. Petitioners, other agencies, and other interested groups and individuals

participated in the administrative proceedings leading up to Respondents’ approval of the Project

and exemption, either by participating in hearings thereon or by submitting letters commenting

on the Project or exemption. Petitioners attempted to persuade Respondents that the

environmental review exemption and approvals for the Shuttle Project did not comply with the

requirements of CEQA, to no avail. Respondents’ approval of the Project, approval of the

exemption, and failure to prepare an EIR for the Project is not subject to further administrative


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review by Respondents. Petitioners have availed themselves of all available administrative

remedies for Respondents’ violations CEQA.

123. Petitioners have no plain, speedy, or adequate remedy in the ordinary course of

law within the meaning of CCP § 1086, in that Respondents’ approval of the Shuttle Project and

the associated exemption, and failure to prepare an EIR for the Shuttle Project, are not otherwise

reviewable in a manner that provides an adequate remedy. Accordingly, Petitioners seek this

Court’s review of Respondents’ approval of the Project and exemption of the Project from

CEQA, to rectify the violations of CEQA.

124. Unless enjoined, Respondents will implement the Project despite their lack of

compliance with CEQA, the Vehicle Code, and the California Constitution. Petitioners will

suffer irreparable harm by Respondents’ failure to take the required steps to protect the

environment. Declaratory relief is appropriate under CCP § 1060, injunctive relief is appropriate

under CCP § 525 et seq., and a writ of mandate is appropriate under CCP § 1085 et seq. and

1094.5 et seq. and under PRC § 21168.9, to prevent irreparable harm to the environment.

125. CEQA contains a strong preference in favor of preparation of an EIR whenever

there is a “fair argument” that a proposed project “may have significant adverse environmental

impacts.”

126. By approving the Project without analyzing it under CEQA, the City failed to

consider substantial evidence of significant environmental impacts related to the Project, and

wholly failed to consider appropriate mitigation measures to reduce those impacts below

significance.

127. Accordingly, Respondents’ approval of the Project and the associated issuance of

a Class 6 Categorical Exemption under CEQA must be set aside.

CLAIMS FOR RELIEF

FIRST CAUSE OF ACTION

(Writ of Mandate – California Vehicle Code § 22500 - CCP § 1085.

By All Petitioners and Plaintiffs Against All Respondents and Real Parties in Interest)

128. Petitioners hereby reallege and incorporate all of the above paragraphs as if fully


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set forth herein.

129. Article XI, § 7 of the California Constitution provides that “A county or City may

make and enforce within its limits all local, police, sanitary, and other ordinances and regulations

not in conflict with general laws.”

130. The California Supreme Court has held that cities (including charter cities) may

not enact ordinances that violate the State Vehicle Code. (O’Connell v. City of Stockton (2007)

41 Cal.4th 1061, 1074.)

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

Francisco Transportation Code to establish the Shuttle Project because it violates Division 11,

Chapter 9, § 22500(i) and § 42001.5 of the California Vehicle Code.

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.

SECOND CAUSE OF ACTION

(Violation of CEQA – Illegal CEQA Exemption; CCP § 1085, PRC § 21168.5.



set forth herein.

135. Respondents abused their discretion and failed to act in the manner required by

law by exempting the Shuttle Project from CEQA review by issuing a Class 6 categorical

exemption for the Project.

136. The Respondents’ decision to approve the Project based on the Class 6 CEQA

exemption is inconsistent with the terms of the exemption and not supported by substantial

evidence. The CEQA exemption does not apply on its face because the Shuttle Project is not

merely an “information collection” activity, but rather involves the ongoing operation of a

commuter shuttle transportation system with more than 35,000 boardings on more than 350


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vehicles, and use of more than 200 MUNI stops throughout the city every day. Additionally, the

Class 6 Exemption also does not apply on its face because the Project will result in a “serious or

major disturbance to an environmental resource.”

137. Respondents further abused their discretion and failed to proceed in a manner

required by law because the “unusual circumstances” exception prohibits use of a categorical

exemption for the Project.

138. Substantial evidence in the record before Respondents at the time the Project was

approved demonstrated that the Project will have significant adverse environmental impacts due

to unusual circumstances, including, but not limited to: the large scale of the Shuttle Project, the

public safety risks to pedestrians and bicyclists, the air quality impacts of the Project, and the

Project’s potential to displace low and moderate-income individuals.

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

discretion by issuing a categorical exemption for the Project and approving the Project in

reliance on that categorical exemption.

141. Respondents’ adoption of the categorical exemption and approval of the Shuttle

Project must be set aside.

THIRD CAUSE OF ACTION

(Violation of CEQA – Inadequate Findings; CCP § 1085, PRC §§ 21168, 21168.5.



set forth herein.

143. CEQA requires that a lead agency’s findings for the approval of a project be

supported by substantial evidence in the administrative record. CEQA further requires that a

lead agency provide an explanation of how evidence in the record supports the conclusions it has

reached.

144. Respondents violated CEQA by adopting findings that are inadequate as a matter


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of law in that they are not supported by substantial evidence in the record, including, but not

limited to, the finding that the Initial Study shows that there is no substantial evidence that the

Shuttle Project is “exempt from environmental review because the project consists of basic data

collection, research, experimental management, and resource evaluation activities which do not

result in a serious or major disturbance to an environmental resource.”

145. As a result of the foregoing defects, Respondents prejudicially abused their

discretion by making determinations or adopting findings that do not comply with the

requirements of CEQA and approving the Project in reliance thereon. Accordingly,

Respondents’ approval of the Shuttle Project and the associated exemption must be set aside.

PRAYER

WHEREFORE, Petitioners pray for the following relief:

1. For a peremptory writ of mandate directing Respondents and Real Parties in

Interest to:

a. Set aside all amendments to Division II of the San Francisco

Transportation Code discussed in this Petition ab initio;

b. Set aside the approvals of the Shuttle Project ab initio;

c. Set aside the Notice of Exemption for the Shuttle Project ab initio;

d. Vacate and set aside the approvals and resolutions adopting the

Categorical Exemption for the Project and approving the Project;

e. Set aside any and all other actions approving or granting any permits,

entitlements, financing, or other approvals referring or related to the

Shuttle Project unless and until Respondents have prepared, circulated,

and considered a legally adequate CEQA document prior to any

subsequent action taken to approve the Project;

2. For a preliminary and permanent injunction staying the effect of Respondents’

actions issuing a Notice of Exemption for the Project, approving any permits or other

entitlements for the Project, and authorizing any financing for the Project pending the outcome

of this proceeding.


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3. For a writ of mandate directing Respondents to suspend any and all activity in

furtherance of the Project unless and until Respondents take all necessary steps to bring their

actions into compliance with CEQA.

4. For a writ of mandate and a declaratory judgment declaring Respondents’

approval of the amendments to Division II of the San Francisco Transportation Code allowing

private buses to park in public bus stops to be null and void and contrary to law in violation of

Division 11, Chapter 9, § 22500(i) and § 42001.5 of the California Vehicle Code and directing

Respondents to vacate and set aside said amendments.

5. For a preliminary and permanent injunction directing Respondents and Real

Parties in Interest, DOES 1 through 10, inclusive, and ROES 1 through 100, inclusive, to cease

and refrain from engaging in any and all activities in furtherance of the Project unless and until

Respondents take all necessary steps to bring their actions into compliance with CEQA.

6. For a preliminary and permanent injunction directing Respondents and Real

Parties in Interest, DOES 1 through 10, inclusive, and ROES 1 through 100, inclusive, to cease

and refrain from violating, aiding and abetting the violation of, or failing to enforce California

Vehicle Code sections 22500 and 42001.5.

7. For the costs of suit.

8. For an award of attorneys’ fees pursuant to Code of Civil Procedure §1021.5 and

any other applicable provisions of law.

9. For any other legal and equitable relief as this Court deems just and proper.

Dated: May 1, 2014 LOZEAU|DRURY LLP ____________________________ Richard T. Drury Rebecca L. Davis Attorneys for Petitioners


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VERIFICATION

I, Elizabeth “Alysabeth” Alexander, am a Petitioner and Plaintiff in this action. I have

read the foregoing Verified Petition for Writ of Mandate and Complaint for Declaratory and

Injunctive Relief and know its contents. The facts alleged in the above Petition and Complaint

are within my own knowledge and I know these facts to be true, except as to matters alleged

therein on information and belief.

I declare under penalty of perjury under the laws of the State of California that the above

is true and correct and that this declaration is executed on May 1, 2014 at San Francisco,

California.

Date: May 1, 2014 ________________________________________ Elizabeth “Alysabeth” Alexander Petitioners and Plaintiffs


Google Bus Commuter Shuttle Lawsuit

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