FILED SAN MATI!!O COUNTY

MAY 0 8 2014 ByCiorKott~

DE UTYCLERK

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN MATEO

COMPLEX CNIL LITIGATION

ALLIANCE FOR RESPONSffiLE NEIGHBORHOOD PLANNING, an unincorporated association, CHRISTINE C. FITZGERALD, DIANE HAGGERY, and ELIZABETH VORSATZ,

Petitioners and Plaintiffs,

vs.

BURLINGAME SCHOOL DISTRICT,

Respondent and Defendant. ------------------------~/

Civil No. 519075

Single Assigned CEQA Judge Hon. MarieS. Weiner, Dept. 2 Pursuant to Public Resources Code Section 21167.1(b)

FINAL STATEMENT OF DECISION AFfER COURT TRIAL

Court Trial was held on the Petition for Writ of Mandate and Complaint for

Declaratory Relief on July 29, 2013 in Department 2 of this Court before the Honorable

Marie Weiner. Kevin Haroff of Marten Law PLLC appeared on behalf of Petitioners and

Plaintiffs, and Phillip Henderson and Stan Barankiewicz II of Orbach Huff & Suarez LLP

appeared on behalf of Respondent and Defendant Burlingame School District.

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A tentative decision was issued and filed on October 9, 2013. A Proposed

' Statement of Decision was issued on November 20,2013. The parties had the

opportunity to file Objections, and did so.

Upon due consideration of the evidence presented at trial, the argument of

counsel, the briefs on the law, and the objections and responses to objections as to the

Proposed Statement of Decision,

IT IS DECIDED, ORDERED AND ADJUDGED, as the Final Statement of

Decision, as follows:

1. The Petition for Writ under the first "cause of action" on the basis of

violation of CEQA, in that Respondents did not obtain an Environmental Impact Report,

but rather adopted an Initial Study and Mitigated Negative Declaration and approved the

Project on that basis, is GRANTED. Under the "fair argument" test, an Environmental

Impact Report is required under CEQA- rather than a Mitigated Negative Declaration --

at least as to traffic and parking impacts of the proposed Project. The Court concludes

that there is substantial evidence in the Administrative Record for a fair argument that the

Hoover Elementary School Project, under the Initial Study and Mitigated Negative

Declaration that were adopted by Respondent, might have a significant environmental

impact.

2. The Petition for Writ under the second "cause of action" on the basis of

violation of CEQA for failure to recirculate the Mitigated Negative Declaration is MOOT

given the Court's granting of the Petition on the first claim.

3. The Petition for Writ under the third "cause of action" on the basis of

violation of CEQA for failure to adequately respond to comments is MOOT given the

Court's granting of the Petition on the first claim.

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4. The Complaint's fourth cause of action for declaratory relief is MOOT

and/or the Court declines to exercise its discretion to provide declaratory relief, on the

basis that relief is provided under the granting of the Petition for Writ to require an

Environmental Impact Report.

5. Accordingly, a Peremptory Writ of Mandate shall be issued vacating

Burlingame School District's adoption of the Initial Study and Mitigated Negative

Declaration (which occurred on December 11, 2012), and vacating approval of the

Hoover Elementary School Project, as set forth in Resolution #2012/13-1, approved and

adopted on December 11, 2012 ..

6, Further, Burlingame School District is enjoined and prohibited from

undertaking any further construction, installation or development, issuing any

construction or further development approvals or permits, and taking any other action to

proceed with the Hoover Elementary School Project, pending compliance with CEQA

and the issuance of an Environmental Impact Report. The failure to adequately address

traffic and parking environmental impacts permeates more that the mere operation of a

school or how a student drop-off area is configured. Indeed, the demolition of the Annex

and the building of a new and much larger school building- which. is a key component of

the Project - is designed to take away the vast majority of the existing parking lot on the

property, and thus resulting in a parking shortage and traffic problem. Thus the

injunctive relief is GRANTED as to the Project itself, and not simply a portion thereof.

This is without prejudice to the opportunity for Respondent, by formal motion to this

Court, to seek limited modification of the injunction in order to secure and stabilize the

existing construction - as to which this Court will retain jurisdiction.

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7. Petitioners shall draft and submit to the Court a proposed Writ and

proposed Judgment, after circulation to and meet and confer with, counsel for all parties.

THE COURT FINDS as follows:

STANDARD OF REVIEW

General Standard of Review of Administrative Decisions

The decision of Respondent contested by this Petition for Writ is quasi-judicial in

nature, and thus subject to administrative mandate review under Code of Civil Procedure

Section 1094.5. See also McGill v. Regents of University of California (1996) 44

Cal.App.4th 1776, 1785. It is not disputed that a hearing was required, a hearing was

held, and evidence was taken.

"The inquiry in such a case shall extend to ... whether there was any prejudicial

abuse of discretion. Abuse of discretion is established if the respondent has not

proceeded in the manner required by law, the order or decision is not supported by the

findings, or the findings are not supported by the evidence." C.C.P. 1094.4(b).

The determination of whether there was a failure to proceed as required by law or that the

decision is not supported by the findings is subject to de novo review by the Court, as

these pertain to issues of law, not fact.

The question of whether findings~ required to be made is an issue oflaw.

Whether the findings were made, but do not sufficiently support the decision made, is

also a question oflaw subject to de novo review. This is to be distinguished from the

determination of whether the findings themselves are supported by sufficient evidence,

which is an issue of fact subject to the "substantial evidence" test. C.C.P. 1094.5(c);

Guinnane v. San Francisco City Planning Comm. (1989) 209 Cal.App.3d 732, 742-743.

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"Where it is claimed that the findings are not supported by the evidence . . . abuse of

discretion is established if the court determines that the findings are not supported by

substantial evidence in light of the whole record." C.C.P. 1094.4(c).

In an administrative mandamus action under C.C.P. Section 1094.5, the phrase "in

light of the whole record" "means that the court reviewing the agency's decision cannot

just isolate the evidence supporting the findings and call it a day, thereby disregarding

other evidence in the record. [Citation.] Rather, the court must consider all relevant

evidence, including evidence detracting from the decision, a task which involves some

weighing to fairly estimate the worth of the evidence. [Citation.]" Lucas Valley

Homeowners Assn v. County of Marin (1991) 233 Cal.App.3d 130, 142.

Deference cannot be given to findings of the public agency (that mitigation

measures are effective) where those findings "are not support.ed by substantial evidence

or defy common sense." Gray v. County of Madera (2008) 167 Cal.App.4th 1009, 1116.

"Law is not required to abandon common sense." Gray, at pp. 1116-1117. The

reviewing court is entitled to apply its own common sense as to whether mitigation

measures will be effective. ld.

As stated by the Court of Appeal in Bakersfield Citizens for Local Control v. City

of Bakersfield (2004) 124 Cal.App.4th 1184, 1197, 1198:

"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."' [Citations.] Substantial evidence is not "argument,

speculation, unsubstantiated opinion or narrative, evidence which is

clearly inaccurate or erroneous, or evidence of social or economic impacts

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which do not contribute to, or are not caused by, physical impacts on the

environment, is not substantial evidence .

"CEQA requires an EIR to reflect a good faith effort at full disclosure; it

does not mandate perfection, nor does it require an analysis to be

exhaustive." [Citation.] Therefore, "noncompliance with CEQ A's

information disclosure requirements is not per se reversible; prejudice

must be shown." [Citations.] Failure to coinply with the information

disclosure requirements constitutes a prejudicial abuse of discretion when

the omission of relevant information has pre_cluded informed

decisionmaking and informed public participation, regardless whether

a different outcome would have resulted if the public agency had complied

with the disclosure requirements. [Citations.] (Bold added.)

See also, Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587,596.

Fair Argument Standard Applies

The Petitioners assert that where, as here, the Respondent relied upon an Initial

Study and approved the Project pursuant to a Mitigated Negative Declaration, the

standard of review is whether there is a "fair argument" that the Project may have a

significant environmental impact such that an Environmental Impact Report must be

done instead.

"The decision-making body shall approve the negative declaration if it finds on

the basis of the initi~ study and any comments received that there is no substantial

evidence that the project will have a significant effect on the environment." P.R.C.

15074(b).

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The law provides that if the question is whether an EIR should be prepared, the

standard of review is under C.C.P. Section 1094.5 and P.R.C. Section 21168. City of

Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 239.

A negative declaration is a written statement that briefly explains

why a project will not have a significant environmental impact and

therefore will not require an EIR. [Citation.] A negative declaration is

proper only if the agency determines based on an initial study that there is

no substantial evidence that the project may have a significant effect on

the environment. [Citations.] If an initial study shows that the project

may have a significant effect on the environment, a mitigated negative

declaration may be appropriate. A mitigated negative declaration is

proper, however, only if project revisions would avoid or mitigate the

potentially significant effects identified in an initial study "to a point

where clearly no significant effect on the environment would occur,

and there is no substantial evidence in light of the whole record

before the public agency that the project, as revised, may have a significant effect on the environment." [Citations.]

"Significant effect on the environment" means a substantial, or

potentially substantial, adverse change in the environment." [Citations.]

* * *

These legal standards reflect a preference for requiring an EIR

to be prepared. "There is 'a low threshold requirement for

preparation of an EIR' [citation), and a 'preference for resolving

doubts in favor of environmental review' [Citation]. An EIR must be

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prepared 'whenever it can be fairly argued on the basis of substantial

evidence that the project may have significant environmentai impact'

[citation], even if there is substantial evidence to the contrary."

[Citations.]

"Application of the 'fair argument' test is a question of law for

[the court's] independent review. [Citations.] . "Under this

standard, deference to the agency's determination is not appropriate

and its decision not to require an EIR can be upheld only when there

is no credible evidence to the con~ry." [Citations.]

Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 330-332, bold added; see

also, Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 926-928; Oro

Fino Gold Mining Corp. v. County ofEl Dorado (1990) 225 Cal.App.3d 872,880-881.

"It is a question of law, not fact, whether a fair argument exists, and the courts

owe no deference to the lead agency's determination. Review is de novo, with a

preference for resolving doubts in favor of environmental review. [Citations.]" Pocket

Protectors, 124 Cal.App.4th at p./928, emphasis original.

In regard to judicial review of a negative declaration, the First Appellate District

stated the standard as follows:

Because a negative declaration must be premised on the finding

that there is no substantial evidence before the agency that the

project, as initially submitted or revised, may have a significant

effect on the environment (21080, subd. (c)), the adoption of a

negative declaration will not be upheld merely because there is

substantial evidence that no such impact will occur. Instead, the

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reviewing court must determine whether substantial evidence

supports the conclusion that there is no fair argument to be made

that the project might have a significant environmental impact.

[Citations.]

Lucas Valley, 233 Cal.App.3d at p. 142. In reviewing an agency's decision to adopt a

negative declaration including after adoption of final mitigation measures, the standard is

whether there is "still credible evidence that the project could generate substantial

adverse effects." Lucas Valley, at p. 163.

If "there is substantial evidence in the record supporting a fair argumentof

significant environmental impact," "it cannot be overcome by substantial evidence

to the contrary. [Citations.]" Leonoffv. Monterey County Board of Supervisors

(1990) 222 Cal.App.3d 1337, 1348 (Sixth Appellate District), bold added.

Thus the standard of review on this Petition for Writ is the ''fair argument" test,

which is determined by this Court as an issue of law, with no deference to be given to the

Respondent's determination.

STANDARDS FOR CONSIDERATION OF EVIDENCE IN THE

ADMINISTRATIVE RECORD ON TRAFFIC AND PARKING IMPACTS

In regard to issues of parking and traffic resulting from a proposed project, the

agency and the Court are entitled to rely upon common sense. Lucas Valley, 233

Cal.App.3d 130, 154 fn. 11. In regard to traffic and parking issues, relevant personal

observations by residents in the area are evidence to be considered by the public agency.

Leonoff, at pp, 1351-1352; Oro Fino, 225 Cal.App.3d at p. 883. But concerns must be

substantiated by evidence. Leonoff, at p. 1352.

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"Relevant personal observations of area residents on nontechnical subjects may

qualify as substantial evidence for a fair argument. [Citations.] ... On the other hand,

mere argument, speculation, and unsubstantiated opinion, even expert opinion, is not

substantial evidence for a fair argument. [Citations.]" Pocket Protectors, 124

Cal.App.4th at pp. 928-929.

As for traffic concerns, a ''threshold of significance may be useful to determine

whether an environmental impact normally should be considered significant. [Citation.]

A threshold of significance is not conclusive, however, and does not relieve a public

agency of the duty to consider the evidence under the fair argument standard.

[Citations.]" Meii~ 130 Cal.App.4th 322, 342. Although a project may have a parking

or traffic impact, ''the test if whether these impacts are potentially detrimental or

significant." Lucas Valley, at p. 155.

It is not enough to have a law forbidding certain noise levels or parking

requirements or other legal restrictions in order to be an adequate "mitigation" - the

evidence must show that those legal standards are "monitored and enforced vigorously."

Oro Fino, 225 Cal.App.3d at p. 882. Testimony and letters to the public agency by

residents indicating that they have complained about multiple violations of the legal

standards can constitute substantial evidence of environmental effects. Id., at p. 882.

Generally, parking itself is not a CEQA environmental issue, but traffic and air

quality concerns arising from lack of parking is an environmental impact arising under

CEQA. As explained by the First Appellate District in San Franciscans Upholding The

Downtown Plan v. Citv and County of San Francisco (2002) 102 Cal.App.4th 656,697:

Contrary to appellant's apparent assumption, there is no statutory

or case authority requiring an EIR to identify specific measures to provide

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additional parking spaces in order to meet an anticipated shortfall in

parking availability. The social inconvenience of having to hunt for scarce

parking spaces is not an environmental impact; the secondary effect of

scarce parking on traffic and air quality is. Under CEQA, a project's

social impacts need not be treated as significant impacts on the

environment. An EIR need only address the secondary physical impacts

that could be triggered by a social impact. [Citation.]

This past year the Fourth Appellate Distri~t took a different view, holding that

parking is a CEQA issue. In Taxpayers for Accountable School Bond Spending v. San

Diego Unified School District (2013) 215 Cal.App.4th 1013, in a case involving proposed

improvements to the Hoover High School in San Diego, the Court of Appeal addressed

the dispute as to whether CEQA required an EIR rather than the Mitigated Negative

Declaration that was adopted by the School District. A traffic study was conducted

regarding the traffic impact of installing lights on the football fields so that there would

be evening events at the high school. lib at p. 1046. The Initial Study acknowledged

that there would be insufficient parking on-site to accommodate sports events, and no

study was done to determine the level of parking in the neighborhood in the evenings

versus the anticipated parking needs for a Friday night football game. The School

District took the position that parking was not a CEQA issue. The Fourth Appellate

District disagreed:

Contrary to District's assertion, CEQA does not provide that a

project's direct impact on parking cannot constitute a significant impact on

the physical environment. In support of its assertion, District cites

language from San Franciscans Upholding [citation] ....

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District argues that under SFUDP the parking shortage created by

the Project is merely a "social inconvenience," and cannot constitute a

significant physical impact on the environment. However, as Taxpayers

argues, that language from SFUDP is likely dicta because the court

alternatively concluded there was substantial evidence to support the

EIR's conclusion that proposed measures to mitigate the parking shortage

were adequate. [Citation.] Furthermore, SFUDP's language applied only

to the special circumstances in that case in which there was a strong public

policy, reflected in a city ordinance, against providing private off-street

parking to encourage the use of public transit. [Citation.] In any event,

we disagree with the broad statement made in SFUDP that parking

shortage is merely a social inconvenience and can never constitute a

primary physical impact on the environment. As Taxpayers notes, cars

and other vehicles are physical objects that occupy space when driven and

when parked. Therefore, whenever vehicles are driven or parked, they

naturally must have some impact on the physical environment. The fact

that a vehicle's impact may be only temporary (e.g., only so long as the

vehicle remains parked) does not preclude it from having a physical

impact on the environment around it. Therefore, as a general rule, we

believe CEQA considers a project's impact on parking of vehicles to be a

physical impact that could constitute a significant effect on the

environment.

Although the Guidelines apparently do not specifically list parking

as one of the potential impacts that must be addressed in an initial study or

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EIR, the Guidelines do not set forth an exclusive list or all potential

impacts that must be addressed. Rather, they provide a sample list of

those impacts of projects that are most common and should be addressed

by lead agencies. [Citation.] The Guidelines expressly advise:

"Substantial evidence of potential impacts that are not listed on this form

must also be considered." [Citation.] Furthermore, the Guidelines include

a section on transportation and traffic, which issues presumably include

parking issues, even though parking is not expressly listed. [Citation.]

We reject SFUDP's language, quoted above, and are unpersuaded by its

reasoning. Therefore, we decline to apply it in the circumstances of this

case.

Furthermore, regardless of whether parking is considered a

primary or secondary impact of a project, a project's impact on parking

generally should be studied for any potential impact on the environment ....

Taxpayers, 215 Cal.App.4th at pp. 1051-1052.

Is there credible evidence supporting a fair argument that the Project may have a

significant effect upon the environment - even if there is significant evidence supporting

the Respondent's decision? This Court must determine whether substantial evidence

supports the Respondent's conclusion that there is no fair argument to be made that the

Project might have a significant environmental impact, even as mitigated in the Mitigated

Negative Declaration.

Under this standard, the Court looks at evidence in the Administrative Record

which is contrary to the Respondent's decision, and considers the issue in light of the

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whole record- rather than the standard of review if there had been an E~ which is

whether there is substantive evidence supporting the decision.

THE PETITION WAS TIMELY FILED AND SERVED

In order to defeat it on the basis of"statute oflimitations", Respondent seeks to

broadly characterize the Petition. Respondent asserts that it is an attack upon the

"project" as an elementary school, and that the concept of opening an elementary school

on the site was approved back in 2011. That issue is not raised by the Petition for

adjudication at this time. Rather, the Petition asserts as the first claim that an EIR rather

than a mitigated negative declaration is mandated under CEQA using the "fair argument"

test, as the second claim that the mitigated negative declaration should have been

recirculated for public comment due to the revisions regarding the student drop-off areas,

and as the third claim that Respondent's responses to comments on the initial study and

mitigated negative declaration were inadequate.

The Court rejects the statute of limitations argument by Respondent. The Initial

Study/Mitigated Negative Declaration was issued in September 2012, the Project was

approved on December 11,2012, the Notice of Determination for the Project was filed on

December 12, 2012, and this lawsuit was filed on January 11, 2013.

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SUBSTANTIAL EVIDENCE IN THE ADMINISTRATIVE RECORD SUPPORTS

A "FAIR ARGUMENT" THAT THE PROJECT MAY HAVE A SIGNIFICANT

IMPACT ON THE ENVIRONMENT, IN REGARD TO TRAFFIC AND

RELATEDP~GISSUES

Pertinent Background and Procedural Facts

The Administrative Record reflects the following evidence and facts pertinent to

the background and procedural aspects of this dispute:

The Project as Originally Proposed The site history is as follows:

The original Hoover Elementary School opened in 1932 and

operated first as a K-6 and then as a K-5 elementary school. Hoover

Elementary School operated at the Project site until1979, when the school

was closed due to declining enrollment. Approximately 250 students were

enrolled at the school during its operation. In 1989, [Respondent] BSD

sold the school site to Shinnyo-en, a Buddhist organization. Shinnyo-en

operated its temple and educational functions at the site into 2007, when

the temple was closed and their operation relocated to Redwood City. The

site has remained vacant since 2007. The BSD purchased and reacquired

the Project site in October 2010.

(1 AR 3:22.) Thus, the property has been vacant since 2007, and has not operated as a

school site for 35 years.

The property owned by Respondent, proposed to be the site of the new Hoover

Elementary School, consists of two parcels totaling approximately seven acres. One

parcel is in Burlingame, and one parcel is in Hillsborough. (9 AR 108:4694.) The

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developed portion of the property is on the Burlingame parcel. (9 AR 1089:4694.)

Respondent proposes to open a K-5 elementary school in the site. The school entrance

would be roughly at the intersection of Canyon Road and Summit Drive, and the front of

the proposed school is along Summit Drive.

As a practical matter, children cannot walk to school at the proposed school site,

because there are no sidewalks on Summit Drive or Canyon Road in the vicinity of the

school. (9 AR 128:4863; 12 AR 261:6336.) The roads are windy/curvy; there are no

bike lanes; the streets are narrow and there is not enough space for two cars to pass each

other. (12 AR 261 :6335.)

the Hoover School Project, as originally described, anticipated school staffing of

a minimum of 21 and up to 32 staff (not including maintenance workers). (9 AR 108:

4696; 9 AR 122:4797.) The original Project description also anticipated and relied upon

the hypothetical inclusion of many traffic minimizing conditions: "Traffic volumes will

be minimized by encouraging walking and bicycling, keeping the attendance area

compact and having a walking school bus. The Design shall consider those multiple

modes of transportation, access needs and trip purposes. Measures shall be taken to

ensure school area pedestrian safety. The District shall coordinate with the city where off

site measures are required. Efforts shall be made to provide safe street access for

vehicles and pedestrians, including on site drop-off where possible." (9 AR 108:4705; 9

AR 122:4806.)

These "design" assumptions do not exist or did not occur (other than creation of a

drop off area).

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The Tra/ftc Study

Respondent hired Fehr & Peers to conduct a traffic study. Fehr & Peers issued its

Hoover Elementary School Transportation Study dated October 3, 2011, later revised as

of August 13, 2012 (''Traffic Study"). (12 AR 185:6081-6097.) The Traffic Study and

its conclusions are based upon collecting traffic data on one unidentified day in

September 2011. (12 AR 185:6083.) Presently there is a low volume of traffic in the

area of the Project on Summit Drive, Canyon Road, an~ Easton Drive.

The Traffic Study acknowledged that, although the roads in the area of the Project

are technically two lanes (one way each direction) in reality they each only function as a

one lane street: "These observations also showed that on-street parking, including a high

number of contracted gardener pick-up trucks, substantially reduced the usable width of

the roadways and that vehicles typically had to drive slowly or pause to allow on-coming

vehicles to pass." ( 12 AR 185:6081.) It also acknowledges the lack of ability for

pedestrians to walk to the proposed school site: "[M]ost of the streets near the school

have limited right of way and narrow or no sidewalks. During field observations,

vehicles were observed parking on sidewalks where they did exist because of limited

roadway width. There were no pedestrians or bicyclists observed." (12 AR 185:6085.)

In order to forecast the increase in traffic resulting from opening an elementary

school at the Project, the Traffic Study relied upon (i) a national survey, (ii) vehicular

rates from San Diego, and (iii) vehicular rates based upon one K-8 private school in

another county. (12 AR 185:6085.) No existing schools in San Mateo County were used

to develop traffic forecasts for the Project - not even schools in the geographic area.

The Traffic Study acknowledged that "daily trips" for vehicle traffic caused by a

private elementary school is double the traffic resulting from a public elementary school.

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(12 AR 185:6086.) This is because more students are driven to private schools than to

public schools: "students from higher socio-economic backgrounds, no community

busing- students more likely to be dropped off by a parent". (12 AR 185:6086.) Fehr &

Peers calculated their forecast of increased traffic from the Project by taking the average

vehicle "daily trips" for public and private schools as a "composite rate".

Yet, the Traffic Study reflects that the neighborhood of the proposed Hoover

Elementary School has all of the characteristics of a private school (and few, if any, of a

typical neighborhood public school). "[W]ith the Summit Drive site's location in the

Burlingame Hills, and its challenging pedestrian topography and lack of sidewalks, fewer

students would likely walk or bike to school than a typical neighborhood elementary

school in a denser or flatter neighborhood. Further, with limited access to transit and no

proposed bussing or off-campus drop-off/shuttle program at this time, the school would

likely generate more vehicle trips than a typical public elementary (K.-5) school." (12 AR

185:6087.)

Even using these conservative forecast rates, the Traffic Study predicts that traffic

will nearly double during the morning hour of7:30 to 8:30a.m. and increase by over

50% the existing amount of traffic in the mid-afternoon hour of3:00 to 4:00p.m. (12 AR

185:6088.) Further, these are figures pertaining to spreading the number of vehicles over

a one hour period -common sense and common experience tells us that people tend to

drop off their kids at school in a much-shorter window of time, e.g., 15 minutes around

the tinie school starts. Even the Traffic Study acknowledges that the increased traffic

would probably be condensed into a 20 minute period of time. (12 AR 6093-6094.)

There is no discussion and no consideration in the Traffic Study of the

effect/impact of the Project design resulting from the fact that is proposed to have school

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traffic from four roads all converging and funneling into a single school entrance for

student drop off and parking. Rather, the measurements appear to be of the increase of

traffic from the four roads coming to the intersections near the school. It does not appear

to reflect any calculation acknowledging that all (or nearly all) of this increased traffic

will be then traveling on Summit Drive to drop off the kids. Indeed, the Traffic Study

only allocates 10% of the increase to Summit Drive where the school is located. (12 AR

185,6087, 6089.)

The Traffic Study then considers whether this increase in vehicle trips is "an

acceptable amount of traffic on a local residential street". (12 AR 185:6091.) Noting

that Burlingame has not adopted any ''volume impact threshold ", and most cities in the

Bay Area who do have such do not specify volume thresholds for residential streets. (12

AR 185:6091.) Looking at some Bay Area cities that do have residential street volume

and impact thresholds, the Traffic Study found that generally the impact threshold was

reached ifthe average weekday daily traffic volume increased by 150 vehicles. (12 AR

185:6092-6093.) The volume threshold varied greatly, with two cities using 1500 vpd,

and other cities using a percentage of existing traffic. Fehr & Peers decided to use the

following threshold criteria: ''using the suggested thresholds, the proposed project would

be determined to result in a significant neighborhood traffic impact if implementation of

the project (1) causes the average weekday daily traffic volume to exceed 1,500 vpd; and

(2) increased the average weekday daily traffic volume by 150 vpd." (12 AR '85:6093.

Using this measure, the Traffic Study concluded that the traffic increase would be "less

than significant", even though the Project would be beyond the impact threshold of over

150 vpd added to traffic, because the volume threshold of 1500 vpd total per street would

not be reached.

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The "drop off'' area is located on the southern portion of Summit Drive. The

northern portion of Summit Drive and the southern portion of Summit Drive are not

continguous. (See 9 AR 125: 4812.) The school, and specifically the area for entry into

the "drop-off'' area, is not at a four-way intersection. Although there are stop signs where

the southern portion of Summit Drive and Easton Drive meet (uphill west-bound only on

Easton), and stop signs where the northern portion of Summit Drive and Canyon Road

meet (downhill east-bound only on Canyon), there are no stop signs specifically at the

area of the drop-off entry. (10 AR 135:5376-5377.) Accordingly, cars coming from

Easton Drive will have to turn left across the right-of-way of cars coming down from

Canyon Road (some of whom presumably will turn right into the drop-off area)- thus

precluding those cars coming uphill on Easton who want to turn left. (See 9 AR

125:4812.)

The Traffic Study considers the proposed drop off area, and calculates that it

would have a demand of six cars per minute if only 75% of the parents drop off their kids

during the 20 minutes before school and if a vehicle only stops for a total of 1.5 minutes.

(12 AR 185:6094.) No fadual basis for these assumptions is provided! The Traffic

Study acknowledges that steps would need to be taken to ensure that the six vehicles

enter and exit smoothly and that no one takes too much time to drop off their young

children. (12 AR 185:6094.)

Respondent argues that the l/5 minute measure is addressed in the Responses to Comments. Although Respondent's response to comments claims that this 1.5 minute measure was derived from "observations" at other schools m the Bay Area (1 AR ~:210 fu. 2), there is nothing in the Traffic Study about any such observations or any other evidence of this, nor does the response to comment give any indicated of who made any such alleged "observations" or when or any other details. Thus it is a bald statement unsupported by any evidence whatsoever in the Administrative Record or the Traffic Study.

20

Further, the Traffic Study suggests that the streets and entrance to the drop off

area be reconfigured so that the entrance is directly aligned with Easton Drive. ( 12 AR

185:6095.

Despite concluding that the traffic impacts would be "less than significant" for

purposes of CEQA, the Traffic Study suggested that mitigating steps be taken:

Although no mitigation or improvement measure is required, an effective

strategy to deal with potential traffic could be to develop an effective

drop-off and pick-up strategy that minimizes conflicts and vehicles queued

near the school or that reduces the number of vehicle trips ovemll. If the

BSD seeks to reduce the amount of vehicle trips generated by the school,

they may want to explore transportation demand management measures

such as incentives or carpooling, managing a carpool list, off-site drop-off

in conjunction with a shuttle bus or charter van, etc. (12 AR 185:6093.)

None of this was done.

The Traffic Study discussed that parking would be a problem. The site presently

has 65 parking spaces. (12 AR 185:6093.) The Project proposed to use that space for

other purposes, and reduce parking spaces to approximately 15. (12 AR 185:6096.) The

Traffic Study notes that this is not enough spaces for the daily staff at the proposed

school (let alone, visitors and volunteers), and suggests that the plans be revised to

provide that sufficient parking spaces be left for all employed staff, and allow visitors and

part-time staff to park in the drop-off area during the day. (12 AR 185:6095-6096.)

The Traffic Study acknowledges that the plans for the Project do not consider or

provide for the inevitable after-school activities or special events at the school. (12 AR

185:6096.)

21

Redesigned Drop-Off Area

Thereafter, the drop-off area was redesigned based upon comments received.

Having a dedicated drop off and tum-around area, separate from the street and

accommodating approximately 6 cars at a time, would now not be built. (12 AR

236:6268; 248:6304.) Instead, 16 spaces would be created along Summit Drive in front

of the school, for vehicles to pull in, drop off the kids, and pull out. @ The efficacy of

the new design is dependent upon (1) people driving all the way down to drop off kids at

the end of the school property to use those drop-off spaces, rather than bunching up to

drop off at the initial drop-off spaces; and (2) that vehicles will drive the entire length of

the school before turning around to drive back to the intersection as the means of exit,

rather than making a quick illegal U-turn back to the intersection. (IQJ

Revised TraffiC Study

Given this new design, Fehr & Peers issued a revised Traffic Study dated

November 29, 2012. (12 AR 245:6284-6300.) No new studies were conducted. No new

data was collected (despite the passage of over one year). No new calculations were

done. No new conclusions were reached. The revisions include:

(i) additional language in the section on ''trip assignment" indicating

anticipated approaches by vehicles (but no additional traffic study of the additional streets

anticipated to be effected) (12 AR 245:6290);

(ii) an additional paragraph under "roadway volumes" considering the

Highway Capacity Manua/2000 methodology (12 AR 245:6294) discussing that school

traffic at pe8k times would be expected to occur within a 5 or 10 minute time frame, but

that the "LOS" rating would still be within the "acceptable" range for intersection traffic;

22

(iii) an additional paragraph under "potential neighborhood impacts"

indicating that other roads (other than the four b~ the school) would likely have more

traffic but that ~s would be "less than significant" - which conclusion was not based

upon any data but rather simpiy extrapolated from the Traffic Study's own conclusion

that traffic imp~cts at the school site would be "less than significant" (12 AR 245:6296);

(iv) an amended Figure 4, to now reflect the design change for the drop

off areas (12 AR 245:6298);

(v) revisions and additions to the "student pick-up/drop-off section, given

the new design (12 AR 245:6297);

(vi) revisions to the section on "parking", once again acknowledging its

inadequacy; but providing no real conclusions or solutions because "a parking deficit is

not considered to be part of the environment; therefore, no impact is identified." (12 AR

245:6299.); and

(vii) revision to the conclusion regarding the drop-off area, and its

dependency upon unidentified "st:a:ff' to coordinate traffic every day: "This zone would

require active management by a staff member or attendant to ensure efficiency and to

minimize queuing on neighborhood streets." (12 AR 245: 629.9.)

Although the parking problem is glaring, and common sense and experience

dictates that a lack of parking leads to greater traffic problems, it is not addressed,

calculated or mitigated in the Traffic Study nor the ISIMND. The Traffic Study does no

analysis regarding the known flagrant parking problems with the Project - on the basis

that CEQA does not concern itself with parking.

The Traffic Study indicates that the curbside drop-off areas would need to be

"actively managed" to ensure that (a) parents are discouraged from dropping off at other

23

locations by the school, (b) that parents do not make illegal U-turns, rather than driving

all the way to the end of the drop-off area before turning around, and (c) parents quickly

drop off the kids so that there is not a line-up onto the city streets. (12 AR 245:6297.)

This active traffic management is assumed to be assigned to school "staff''- of unknown

identification- all of whom have other duties at the school (and not all of whom even

have a place to park at school).

Although a "Mitigated" Negative Declaration was ultimately approved by

Respondent, the ''mitigations" contained therein have nothing to do with traffic issues or

parking problems after the school is built and operational (as the only traffic mitigation

pertains to the time during construction).

Procedural History of the Project including Notice and Meetings

Petitioner Haggerty and Petitioner Vorsatz specifically requested to receive all

notices regarding the Hoover School Project, including email and mail, from Respondent

through Respondent's agent Richard Terrones, the architect/designer of the Project. (8

AR 77:4542-4547; 9 AR 130:4865-4867; 8 AR 83:4562.) Petitioner Vorsatz and

Petitioner Haggerty are both neighbors who live on Summit Drive in Hillsborough. (9

AR 130:4866; 8 AR 77:4542.) They were particularly concerned about traffic

implications of the Project. (9AR 130:4866.) The Administrative Record reflects that

Petitioner Haggerty attending meetings held by Respondent regarding the Project on

January 22,2011 and December 6, 2011. (8 AR 77:4542, 4546) Petitioner Vorsatz

attending the meeting on January 22, 2011. (8 AR 77:4543.)

At the "Hoover Town Hall Meeting" held by Respondent on December 6, 2011,

attendees were told that Respondent had decided to tear down the Annex building to

build a larger building for classrooms, and were told that a traffic study would be

24

conducted with a traffic plan submitted to Respondent by Spring 2012. (8AR 77:4548-

4549.)

Petitioners were assured by Respondent that notices of all meetings regarding the

Hoover School Project were being mailed to everyone in the neighborhood, including

Burlingame and Hillsborough. (9 AR 130:4865.) There is nothing in the Administrative

Record demonstrating that this actually occurred. [Although there are mailing label lists

in the Administrative Record, there is no clarity as to when the lists were used and for

what "notices". (See AR 210:6163-6167 and AR 212:6171-6175.) Indeed the mailing

list seems sparse, given that only 19 addresses are for Hillsborough; and many others

requested to be added to the notice list.]

On September 14, 2012, Respondent published in the San Mateo Daily Journal its

Notice of Intent to Adopt a Mitigated Negative Declaration on the Hoover Elementary

School Project, indicating a comment period of September 14, 2012 until October 15,

2012.2 (12 AR 206:6157.) The Notice also states that there will be a public meeting to

receive oral comments on October 9, 2012 at Respondent's District office, and a public

2 CEQA Guideline 15072(b) provides:

(b) The lead agency shall mail a notice of intent to adopt a negative declaration or mitigated negative declaration to the last known name and address of all organizations and individuals who have previously requested such notice in writing and shall also give notice of intent to adopt a negative declaration or mitigated negative declaration by at least one of the following procedures to allow the public the review period provided under Section 15105:

(i) Publication at least one time by the lead agency in a newspaper of general circulation in the area affected by the proposed project. If more than one area is affected, the notice shall be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas.

(ii) Posting of notice by the lead agency on and off site in the area where the project is to be located,

(iii) Direct mailing to the owners and occupants of property continguous to the project. Owners of such property shall be identified as shown on the latest equalized assessment roll.

(see also, P.R. 21092.) 25

hearing to adopt the Mitigated Negative Declaration on November 13, 2012 at

Respondent's District office. (12 AR 206:6157.)

During the public comment period, Respondents made a presentation regarding to

Project to the Town of Hillsborough, at their City Council Meeting on October 8, 2012.

(14 AR 268:6533-6539.) At that meeting, members of the Hillsborough Council orally

raised questions and concerns about traffic and parking problems resulting from the

Project. These public comments were made to Respondent during the official "comment

period". The traffic and parking concerns were also expressed by Hillsborough's

Director of Building and Planning, who made a presentation to the City Council, and the

Council adopted and approved a formal letter of comments to be sent to Respondent

regarding the Project, expressing concerns including traffic and parking.

The next day, October 9, 2012, Respondent held its regular monthly meeting,

which included on the agenda the Project. (12 AR 225:6236-6237.) Richard Terrones

made a presentation to Respondent's Board of Trustees regarding the ISIMND on the

Project and indicated that the public comment period was still open. No public

comments were made at this meeting regarding the Project.

Thereafter, Respondent decided not to hold a ''public hearing" on November 13,

2012 to approve the MND and adopt a related Resolution at its regular monthly meeting,

but rather only "to receive any further comments" on the ISIMND. (12 AR 234:6263.)

The Minutes of that meeting do not reflect why adoption of the MND was taken off the

agenda. (a AR 8:247-258.) Apparently this was deferred because Respondent had yet to

formulate a formal ''response to comments" it received, particularly the comments from

the Town ofHillsborough.3 (12 AR 234:6263; 12 AR 237:6269-6272.)

CEQA Guideline 15074(b) provides: 26

Consideration of adopting the ISIMND was continued to November 26, 2012 and

then continued again to December 11, 2012 - as the responses to comments were still not

ready. (12 AR 246:6301-6302; 247:6303.) The revised design was not publicly

disclosed until late November 2012, and was scheduled for approval at the December 11th

meeting. (12 AR 247:6303.) As Respondent's representative e-mailed on Friday,

November 30,2012: "We wanted to let you know that the School Board will be

considering adoption of the Mitigated Negative Declaration and approval of the 'Project',

at their Board Meeting on December 11." (12 AR 250:6307.)

The final documents on the Project, including the response to the comments

received during the formal comment period back in October 2012, were not electronically

posted and made publicly available until the evening of Friday, December 7, 2012-

which documents would be considered for adoption at the Respondent's Board Meeting

scheduled for Tuesday, December 11, 2012. (12 AR 253:6315; 255:6317; 256:6319.) In

other words, people including the Town: of Hillsborough would only have two business

days to receive arid have the opportunity to address the lengthy "responses to comments"

by Respondent. (12 AR 255:6317; email from representative of the Town of

Hillsborough to Respondent's agent: "I must say that this is far too tight a time frame for

the Town of Hillsborough to review the responses to the ISIMND and any accompanying

changes that may have occurred.")

"Prior to approving a project, the decisionmaking body of the lead agency shall consider the proposed negative declaration or mitigated negative declaration together With any comments received during the public review process. The decisionmaking body shall adopt the proposed negative declaration or mitigated negative declaration only if it finds on the basis ofthe whole record before it (including the initial study and any comments received), that there is no substantial evidence that the project will have a significant effect on the environment and that the negative declaration or mitigated negative declaration reflects the lead agency's independent judgment and analysis."

27

The ISIMND was adopted and the Hoover Elementary School Project was

approved by Respondent. (12 AR 260:6327; 261:6337.)

Public Evidence and Comments Regarding Traffic and Parking

Problems with the Project

Testimony of area residents who are not qualified environmental experts may also

qualify as substantial evidence when based on relevant personal observations. E.g., City

of Carmel By-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229,246 fn. 8; Oro

Fino, 225 Cal.app.3d 872, 882; Citizens Association for Sensible Development of Bishop

Area v. County of In yo ( 1985) 172 Cal.app.3d 151, 173. Input from non-experts can be

sub~tantial evidence where such input is credible and does not purport to embody

analysis requiring special trainin~. Lay person perceptions are consistent with legislative

definitions of substantial evidence under Public Resources Code Sections 21080 and

21082.2 as they are "facts [and] reasonable assumptions based on facts." As stated in

Citizens Assn. v. lnyo, 172 Cal.App.3d at p. 173: "In this case the record does not

support defendants' contention that all of the public testimony and letters in the

administrative record merely represent fears unsupported by any evidence. First, relevant

personal observations are evidence. For example, an adjacent property owner may testify

to traffic conditions based upon personal knowledge."

Public Resources Code Section 21091 (d) provides, in pertinent part: "The lead

agency shall consider comments it receives on a draft environmental impact report,

proposed negative declaration, or proposed mitigated negative declaration if those

comments are received within the public review period. . . . The lead agency may also

respond to comments that are received after the close of the public review period."

28

Town of HU/sborough

The Project borders the Town of Hillsborough on two sides. During the

"comment period" under the Notice of Intent as to the Initial Study and Mitigated

Negative Declaration, the Town of Hillsborough submitted substantive written comments

to Respondent. (12 AR 226:6240-6243.) This occurred after Respondent made a

presentation to the Town's City Council on October 8, 2012 regarding the Project,

including a Power Point presentation by Respondent's architect and representative

Richard Terrones, and information provided by Respondent's Superintendent Maggie

Macisaac. (14 AR 268:6534-6537.)

Members of the Hillsborough Council presented oral "public comments" to

Respondent's representative at that Town meeting on October 8, 2012, many of which

were objections concerning and evidence regarding parking and traffic. For example:

Councilmember May reported that his daughter attended Hoover

Pre-School in the 1980s and back then parents would drive onto the

parking lot to drop off their children, but with the proposed plan part of

the majority of the parking lot would be eliminated and replaced with

classrooms. He commented that cars making left turns from the proposed

drop-off site would impact traffic on Summit Drive. (14 AR 268:6535-

6536.)

Council member May stated that his main concern about the

proposed school is the increased traffic, and that specific traffic patterns

and impacts could not be fully evaluated_ without an understanding of

where students were coming from. He commented that Hoover would be

the fifth school that the Hillsborough Policy Department would need to

29

monitor for traffic issues. He recommended that BSD look at the traffic

and back up at Hillsborough's south School at 8:25a.m. and incorporate

mitigation measures similar to those being considered by the Nueva

School for their proposed expansion.

Council member Krolik stated that ... the construction and the

school traffic is a "nightmare in the making" because Summit Drive is

such a narrow road. She asked where parents would park when the school

has an vent and she recommended that additional parking spaces be

provided at the school. She commented that the Burlingame and

Hillsborough Police Departments will be impacted forever because of the

increased traffic in the area. She recommended that a parking structure be

built, that the drop-off area be more centrally located, and that BSD notify

residents about the proposed school.

Mayor Kasten stated that Summit Drive is a main east/west artery

and the proposed school would have a severe impact on traffic. He

recommended that BSD come up with a solution to reduce traffic and

noted that the site contained seven acres available to reduce vehicle

queuing on streets. He also recommended that BSD broaden the radius of

public outreach to those that will be significantly impacted by the new

school. He stated that he understood the need for additional classroom

space, but expressed concern regarding construction and school traffic and

their impact to the Hillsborough Police Department.

. Vice Mayor Benton stated that the location of the school is in a

very tight spot and recommended that the Burlingame, School District

30

come up with an alternate transportation plan to reduce traffic. He noted

specific concern regarding evening activities, and noted that traffic

volumes would be changed since the school was in its original operation

with more cars and no buses, and concluded that while Hillsborough

would experience significant traffic impacts they would receive no direct

benefits from the school. (14 AR 268:6536.)

Thereafter, in a formal letter dated October 11, 2012 to the Superintendent of the

Burlingame School District from the Mayor of Hillsborough, the Town expressed its

"strong concerns regarding potential noise, traffic, public safety, and construction

impacts which would affect the adjacent and surrounding residents of Hillsborough." (12

AR 226: 6240.)

The letter noted, among other things, that:

(1) no planned attendance boundary areas for the Hoover school had yet

been proposed or determined, and that such information would be needed in order to

meaningfully determine expected traffic patterns;

(2) potential changes in traffic patterns (including for adjacent roads in

Hillsborough) were not part of the Traffic Study;

(3) that the nature of the school's neighborhood is such that ''the location

of the project will result in a higher percentage of students arriving by car than

represented in the standard ITE formulas" used in the Traffic Study;

(4) the LOS calculation for anticipated traffic is for a one-hour period,

which ignores that school traffic will be during a much shorter period of time, and that

the hilly and windy roads in the area will further contribute to traffic delays, but was not

considered in the Traffic Study;

31

(5) mitigation measures should be adopted to have alternative

transportation options;

( 6) the proposed loading zone is too small and will result in .longer lines;

(7) in regard to the 1.5 minutes per vehicle drop-off time calculation,

"drop-off activities at elementary schools typically require additional time as the driver

releases younger students from their car seats and students search for their books and

lunches";

(8) the elimination of 50 parking spaces will result in insufficient parking

for staff and visitors and result in "significant queuing effect on the public streets;

(9) the streets are too narrow, and any temporary parking along the side of

the road will obstruct the ability for two cars to pass each other, thus "exacerbating traffic

impacts";

(10) ingress and egress to the drop-off area is unsafe as vehicles will have

limited sight distance for on-coming traffic;

(11) after school activities were not part of the Traffic Study

considerations;

(12) the intersection at the school's entrance is uncontrolled, and the plan

for the Project should include controls and signs;

(1~) use of the property by the community was not considered in the

environmental analy~is for traffic, parking and noise impacts; and

(14) the increased traffic would place an unmitigated burden upon the

Town's police force.

32

In making these commentS, the Town relied upon ''the Town of Hillsborough City

engineer, Police Chief and Director of Building and Planning, who have each studied the

proposal and the site." (12 AR 226:6243.)

The Town concluded as follows:

At this point, we conclude that without additional mitigations, the

traffic impacts associated with this proposed school use would have a

significant negative impact on the neighborhood, particularly during peak

traffic periods. . . .

In order to reduce the project traffic impacts to a less than

significant level, we encourage you to work with the Town of

Hillsborough and City of Burlingame Police Departments, along with

impacted neighbors. Specific changes to the site plan and/or mitigation

measures should be developed prior to adoption of the MND in order to

insure that traffic will be managed in a safe and efficient manner

proactivity, and to avoid the deferral of specific mitigation measures. (12

AR 226: 6243.)

Thereafter, in late November 2012, the plan for the Project was revised to change

and expand the drop=off area.

The final proposed ISIMND with the revised drop-off area, and the formal . .

response to comments from the Town of Hillsborough were not publicly released until

Friday, December 7, 2012- two business days before the Respondent's scheduled

meeting to adopt and approve the Mitigated Negative Declaration on the Project. (It was

also a holiday weekend for those celebrating Hanukkah.) (1 AR 6:205-216; the

Responses to Comments dated December 6, 2012.)

33

The Town sent a response letter dated October 10, 2012 to Respondent. (13 AR

267:6520-6532.) The Town complained about the extremely short time given:

While we greatly appreciate the opportunity to review and

comment on the documents, we received these responses late in the day on

December 7, 2012, for the December 11, 2012 decision-making hearing

on the environmental documents. Additionally, we received a revised site

and circulation plan on November 30,2012. Receiving these important

documents so close to the decision-making hearing and during the holiday

season does not provide the Town of Hillsborough or interested citizens

adequate or meaningful opportunity to review and further study the

responses and/or any changes to the environmental documents. The

revised site plan may well have new impacts that have not yet been

studied or considered, including impacts to the provision of public safety

services by the Town of Hillsborough.

(13 AR 267:6520.)

Along with the letter, the Town presented a paper on school traffic impacts

prepared for the ITE by a California registered traffic engineer and professional civil

engineer dated June 22, 2010, supporting a reanalysis of the Traffic Study would be

appropriate. The Town did not agree that the revised drop-off configuration would now

solve the concerns raised in the Town original comments, and concluded that the

proposed Project, without further mitigation, would have a significant environmental

impact due to traffic.

34

Fitzgerald Comment Letter

Petitioner Christine Fitzgerald, an attorney, Project neighbor, and former student

of the former Hoover Elementary School, sent written comments to Respondent, stamped

as received on December 10,2013, regarding traffic and parking problems with the

Project and that an EIR (not just a NMD) is required. (13 AR 266:6515-6519.)

Petitioner claims that Respondent failed to comply with CEQA as "it has not addressed

the significant effects on the environment which will be caused by the proposed project,

namely, that the traffic and parking impacts have not been identified and require further

study, analysis and proposed mitigation measures adopted in the form of an

Environmental Impact Student (EIR)." (13 AR 266:6515.) These are the same claims

raised by the Petition herein.

Petitioner's comments include the following:

"The evidence clearly show [sic] that as currently proposed, the

plan pushes both the traffic and parking function of the school into the

adjacent streets which are ill-equipped to handle that function. BSD

should bear the burden for mitigating the impacts of its use at the Hoover

School site; it is fundamentally unfair for BSD to shift that responsibility

to the surrounding neighborhood to accommodating its impacts simply

because it is providing a public benefit or service." (13 AR 266:6516.)

"[The Traffic Study] lack[ s] consideration of Mercy High School,

located just Y2 mile northeast of Hoover which already experiences severe

traffic impacts which will likely be similar if not identical to Hoover. At

least two of the possible routes into Hoover will be shared between the

two schools. (Coming up/down Hillside Drive into Hillside Circle. The

35

traffic analysis failed to consider Hillside Drive as a potentially [sic] route

to schools as many of the school children live north of Hillside Drive.")

(13 AR 266:6517-6518.)

"Previously, the school functioned in a completely different era, buses

were used, children could walk to school and there was minimal traffic.

Lifestyles have changed in the last 40 years since the school operated.

There is plenty of space in the existing parking lot for stacking and

maneuvering. This wasn't a problem back then because of the site layout.

The new buildings accommodate modem school functions, but they push

the traffic function off site and into the surrounding roadways." 913 AR

266:6519.)

Public Meeting of December 11, 2012

At the public meeting on December 11, 2012, Petitioner Fitzgerald presented

written comments as well as oral comments, raising issues about trafficand the

inadequacy ofthe traffic study and the MND. The Minutes ofthe December 11,2012

meeting reflect the following:

Christine Fitzgerald: Lives on Summit Drive, former Hoover student, and

is an attorney and practiced here for 30 years. She submitted a comment

letter to the Board yesterday and provided a copy to the Board members

tonight. She works with environmental consultants and one of these

associates has agreed to review the traffic portion of the report. Safety is a

huge concern. These streets are two-lane streets, but function as a one-I

lane. They are not wide enough for two cars. This will cause a grid-lock.

36

Does not feel the Mitigated Negative Declaration studied this enough. (12

AR261: 6335.)

Thus the December 11, 2012, was the .first public hearing regarding the new design of the drop off areas and subsequent to receipt of the responses to comment. At

the December 11, 2012 meeting, there were extensive oral comments by neighbors in the

Project area, including all of the individual Petitioners, predominantly expressing

concerns about traffic, parking, and consequential student safety. (12 AR 261:6335-

6336.) There were repeated requests/comments that Respondent should continue

consideration of the Project and further study the traffic implications as the Traffic Study

conducted was inadequate. For example, one neighbor who lives on Summit Drive was

reported as stating: "Biking, driving and walking is difficult on Summit Drive as there

are no bicycle lanes. The [Negative Mitigated] Declaration validates these concerns.

The one day observance in September is not enough observance time to determine the

traffic." (12 AR 261 :6335.) As another neighbor said, "The proposal doesn't sound like

it is workable. Don't rush into it. Do it right the first time." (12 AR 261 :6336.) There

were complaints that neighbors in Hillsborough did not receive any written notices during

the Project process.

STANDING AND EXHAUSTION OF ADMINISTRATIVE REMEDIES

Petitioners/Plaintiffs rely upon the holding in Bakersfield Citizens for Local

Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1199. To be precise, Public

Resources Code Section 21177(a) requires, before any lawsuit can be brought by any

Petitioner/Plaintiff, that ''the alleged grounds for noncompliance with this division were

presented to the public agency orally or in writing by any person during the public

37

comment period ... " Someone did bring up the issue of traffic and parking concerns

during the public comment period. Indeed the multiple concerns about traffic and

parking were presented extensively in oral and written comments by the Town of

Hillsborough to Respondent during the "comment period". Thus, the requirement of

Section 21177(a) is fulfilled.

Section 21177(b) requires that the person who actually brings the lawsuit have

personally "objected to the approval of the project orally or in writing during the public

comment period provided by this division or prior to the close of the public hearing on

the pro jed before the filing of the notice of determination". (Bold added.) There is no doubt that each of the individual Petitioners did object by providing oral objections at

a public meeting of Respondent on December 11, 2012. The Petition alleges that all

three of the individual Petitioners founded and are members of the entity Alliance for

Responsible Neighborhood Planning, which would therefore have standing under Section

21177(c). r'

Thus, under the specific language of CEQA, as long as someone raised the

specific CEQA violation concern, then anyone who actually lodged any objection to the

project can bring a lawsuit regarding the alleged CEQA violation. Indeed, this is the

holding of the Court of Appeal in Bakersfield: "The petitioner may allege as a ground of

noncompliance any objection that was presented by any person or entity during the

administrative proceedings. [Citation.]" Bakersfield, 124 Cal.App.4th at p. 1199; see

also Resource Defense Fund v. Local Agency Formation Comm. (1987) 191 Cal.App.3d

886, 894. "[A] party can litigate issues that were timely raised by others, but only if that

party objected to the project approval on any ground during the public comment period or

prior to the close of the public hearing on the project." Bakersfield, at p. 1200;

38

Federation of Hillside & Canyon Assns. v. City of Los Angeles (2000) 83 Cal.App.4th

1252, 1263. "Thus, a petitioner who has taken part in the administrative process may

assert any issues raised by other parties during the administrative proceedings.

[Citations.]" Galante Vineyards v. Monterey Peninsula Water Management District

(1997) 60 Cal.App.4th 1109, 1119.

Respondent asserts that none of the Petitioners have standing to sue, for failure to

exhaust administrative remedies, because the time when they voiced their objections to

the Project was after the "public comment" period and allegedly after any "public

hearing." Specifically, Respondent argues that its Board Meeting on December 11, 2012

-- where Petitioners and many other neighbors complained about the traffic and parking

problems not addressed in the ISINMD -- does not constitute a formal "public hearing"

on the Project under CEQA. Respondent has no authority directly supporting its position.

Indeed, there is no specific or technical definition of"public hearing" under CEQA-

neither the Public Resources Code nor the CEQA Guidelines ( 14 CCR 15000 et seq.).

Section 21177 is not so. limited that one must have objected at a public hearing

held during the public comment period. Galante Vineyards, 60 Cal.App.4th at p. 1119.

Such an interpretation would make the second alternative of Section 21177(b) be

pointless - and that is not a proper interpretation of the statute. Galante, at pp. 1120-

1121.

Respondent attempts to distinguish Galante Vineyards, and references Central

Delta Water Agency v. State Water Resources Control Board (2004) 124 Cal.App.4th

245. Yet, the issue in Central Delta was different that here. In Central Delta, the

appellants had definitely objected to the project at public hearings in 1997 on the initial

EIR and at public hearings in 2002 on the revised EIR. Central Delta, at p. 255. The

39

issue as to failure to exhaust administrative remedies in Central Delta was that the

appellants had never raised the particular objection concerning loss of agricultural land

and a failure of the EIR to describe feasible mitigation measures therefor. Central Delta,

at p. 273. The la8t public hearing or public meeting on that project was in October 2000.

Appellants did not raise this particular objection until they sent a letter in February 2001,

one day before the respondent water board certified the EIR and issued a Notice of

Determination. The Court of Appeal held that the particular objection was waived.

Here, the issue raised by Respondent is the reverse. It is not subject to legitimate

dispute that the objections to the Project regarding traffic and parking problems were

indeed raised during the official public comment period- certainly by the Town of

Hillsborough. The question is whether the Petitioners made their objections "prior to the

close of the public hearing on the project before the filing of the notice of determination"

Having a meeting of the School District Board on December 11, 2012, which was

open to the public, and where the opportunity was given and the opportunity taken to

provide oral comments and objections to the IS/NMD prior to its formal adoption by

Respondent, meets the common understanding of a "public hearing".

Respondent attempts to make a contorted distinction between a "public meeting"

and a "public hearing", and references the Brown Act. CEQA and the Brown Act are

separate statutory Acts, and do not define each other. CEQA does not create any

distinction between a public meeting and a public hearing for purposes of the ability of

the public to participate in the review process before any formal approval of the

environmental document, be it Mitigated Negative Declaration or formal Environmental

Impact Report.

40

For example: "The notice shall specify the period during which comments will be

received on the draft environmental impact report of negative declaration, and shall

include the date, time, and place of any public meetings or hearings on the proposed

project .... " (PRC 21092(b)(l).) "The lead agency shall notify any public agency

which comments on a negative declaration, of the public hearing or hearings, if any, on

the project for which the negative declaration was prepared." (PRC 21092.5(b).)

Public hearings on approval of environmental documents is not required, not

required to be formal, and commonly done in conjunction with a regular meeting of that

government agency. "CEQA does not require formal hearings at any stage of the

environmental review process. . . . The hearing may be held in conjunction with and as a

part of normal planning activities. . . . The hearing may be held at a place where public

hearings are regularly conducts by the lead agency or at another location expected to be

convenient to the public." (CEQA Guideline 15202.)

It is disingenuous for Respondent to argue that just because there is a regular

public meeting of the Board of Trustees where the public has the right to make comments

or raise concerns with the Board (because of the Brown Act) that it should not be able to

be considered a ''public hearing" under CEQA. This was not a situation where

Respondent conducted its regular monthly meeting and a member of the public

randomly and unexpectedly raised a topic not on the agenda. In this case, the

approval of the MND and approval of Project were explicitly a topic on the agenda of the

meeting, and the public was specifically given the opportunity to give "public comment"

about the MND and the Project prior to the Respondent's approval of the MND at that

same meeting.

41

Respondent asserts that the one and only "public hearing" was at its Board

Meeting on November 13, 2012; and that the Board Meeting on December 11,2012--

where public comments were received on the newly modified Mitigated Negative

Declaration. only disclosed two business days prior - was not a "public hearing" on the

Project, even though that was the meeting where Respondent formally adopted the MND.

This artificial distinction is belied by Respondent's own documents and representations

to the public. In its original Notice of Intent published September 14,2012, Respondent

indicated that there would be a "Public Meeting to Receive Verbal Public Comments on

the Mitigated Negative Declaration" and a "Public Hearing to Adopt the Mitigated

Negative Declaration". 12 AR 206:6157.) Thus by its own definition and Notice, the

"public hearing" is that public hearing or meeting where Respondent was to consider

adoption and adopt the MND. That day was ultimately December 11,2012. Thus, the

making of objections by the Petitioners at that December 11, 2012 Board Meeting --

where the MND was thereafter adopted after receiving those public comments -- fulfills

the standing requirement that Petitioners must have timely objected to the Project in order

to bring this Petition for Writ.

On top of everything else, for the sake of argument, it would be a direct violation

ofCEQA for Respondent to have had the "public hearing" on the MND on November 13,

2012, yet have taken off the agenda any consideration of the MND and its adoption at

that ~e meeting. Respondent claims that it only labelled as a "public hearing" on the

Project its Board Meeting ofNovember 13,2012, and no other. Respondent thus takes

the position that the "public hearing" on the MND was on November 13,2012, but its

consideration of and adoption of the MND was on December 11,2012. CEQA expressly

forbid such a bifurcation.

42

CEQA Guideline 15202(b) states: "If an agency provides a public hearing on its

decision to carry out or approve a project, the agency should also include environmental

review as one of the subjects for the hearing." If a public hearing is held, it cannot be

divorced from the agency's consideration of the environmental document, as held (and

extensively discussed) in Bakersfield Citizens for Local Control v. Citv of Bakersfield.

124 Cal.App.4th 1184:

Exhaustion of administrative remedies is a jurisdictional

prerequisite to maintenance of a CEQA action. Only a proper party may

petition for a writ of mandate to challenge the sufficiency of an EIR or the

validity of an act or omission under CEQA. The petitioner is required to

have "objected to the approval of the project orally or in writing during the

public comment period provided by this division or prior to the close of

the public hearing on the project before the issuance of the notice of

determination." [Citation.] The petitioner may allege as a ground of

noncompliance any objection that was presented by any person during the

administrative proceedings. [Citation.] Failure to participate in the pbulc

comment period for a draft EIR does not cause the petitioner to waive any

claims relating to the sufficiency of the environmental documentation.

[Citation.] However, the lead agency is not required to incorporate in the

final EIR specific written responses to comments received after close of

the public review period. [Citation.]

When discussing exhaustion some opinions have identified

certification of the EIR rather than approval of the project as the crucial

cutoff point. [Citation.] However, section 21177 specifically refers to

43

close of the public hearing on project approval prior to issuance of the

notice of determination, -not certification of the EIR ....

We believe that the apparent inaccuracy in some case law results

from the fact that environmental review is not supposed to be segregated

from project approval. "[P]ublic participation is an essential part of the

CEQA process.'" [Citation.] Although public hearings are encouraged,

they are not explicitly required by CEQA at any stage of the

environmental review process. [Citation.] "Public comments may be

restricted to written communications." [Citation.] Yet, "[p]ublic hearings

on draft EIRs are sometimes required by agency statute, regulation, rule,

ordinance, or the agency's written procedures for implementation of

CEQA." [Citation.] "If an agency provides a public hearing on its

decision to carry out or approve a project, the agency should include

environmental review as one of the subjects for the hearing." [Citation.]

since projeet approval and certification of the EIR generally occur during the same hearing, the two events are sometimes treated as

interchangeable. [Citations.]

C&C disparagingly refers to BCLC's orla presentation and its

busmission of evidence at the February 12, 2003 city council hearing as a

last minute "document dump" and an intentional delaying tactic, points

out that EIR's had been certified prior to opening of the public hearing.

We reject this complaint because C&C omitted the key fact that the

City had improperly segregated environmental review from projeet approval in contravention of Guidelines section 15202, subdivision

44

(b). The planning commission bifurcated the process by agendizing

certification of the EIR's as nonpublic hearing items and separately

agendizing project approval and related land use entitlements as public

hearing items. Similarly, the City Council agendized certification of the

EIR's on the closed consent calendar and agendized the "concurrent

general plan amendment/zone change[ s ]" necessary to implement the

projects on the public hearing calendar. . ..

City appears to have thought that the public's role in the

environmental review process ends when the public comment period

expires. Apparently, it did not realize that if a public hearing is

conducted on project approval, then new environmental objections could be made until close of this hearing. [Citations.] If the

decisionmaking body elects to certify the EIR without considering

comments made at this public hearing, it does so at its own risk. If a

CEQA action is subsequently brought, the EIR may be found to be

deficient on grounds that were raised at any point prior to the close of

the hearing on project approval. . . . C&C's complaint that allowing project opponents to raise

objections after close of the public comment period for the draft EIR allows them to "sandbag" project proponents and delay certification "ad inrmitum" should be presented to the Legislature, for it is a

complaint about the design of the CEQA process.

45

Bakersfield , 124 Cal.App.4th at pp. 1199-1201, bold added. Indeed, Petitioners raised

objections to the MND "prior to the close of the hearing on project approval", which was

on December 11, 2012.

If there is any doubt or ambiguity, CEQA must be interpreted to error on $e side

of the greatest public participation:

Public Participation. Public participation is an essential part of

the CEQA process. Each public agency should include provisions in its

CEQA procedures for wide public involvement, formal and informal,

consistent with its existing activities and procedures, in' order to receive

and evaluate public reactions to environmental issues related to the

agency's activities ....

(CEQA Guideline 15201.)

DATED: May 7, 2014

HON. S. WEINER JUDGE OF THE SUPERIOR COURT

46

SERVICE LIST Alliance for Responsible v. Burlingame School District

CEQA No. 519075 as of January 31,2013

Attorneys for Plaintiffs and Petitioners:

KEVIN HAROFF DANIEL KOLTA MARTEN LAW PLLC 455 Market Street, Suite 2200 San Francisco, CA 94105 (415) 442-5900 Fax (415) 684-9360

Attorneys for Defendant/Respondent:

PHILIP HENDERSON STAN BARANKIEWICZ II ORBACH HUFF & SUAREZ LLP One Kaiser PI~ Suite 1485 Oakland, CA 94612 (510) 999-7908

.Fax (510) 999-7918

47