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MAE -- The Project and EIR's in General Comments about the EIR Comments about the MAEP City Council Meeting 10/28/08 and start of Litigation The Litigation Continued (Under Construction)

THE CITY OF SUNNYVALE CITY COUNCIL MEETING OF OCTOBER 28, 2008 AND THE START OF LITIGATION

Comment by Jeannette Tan Hayden -- October 30, 2008 Selections from the official  Transcript of the CC Meeting of October 28, 2008 (Under Construction) Complaint filed to de-certify the Mary Avenue Extension E.I.R.

Alexander T. Henson, SB#53741

13766 Center Street, Suite 27

Carmel Valley, California 93924

(831) 659-4100

(831) 659-4101 Fax

 

Attorney for Petitioners

  

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CLARA

 

SUNNYVALE WEST NEIGHBORHOOD ASSOCIATION, WILLIAM M. MATHEWS, ELEANORE S. HANSEN, TAMMY SALANS,

          Petitioners,

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CITY OF SUNNYVALE CITY COUNCIL,

          Respondent

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Case No.:

 

PETITION FOR WRIT OF MANDATE

Comes Now Petitioners to allege as follows:

FIRST CAUSE OF ACTION

I

Petitioner Sunnyvale West Neighbors Association is a non-profit unincorporated association organized under the laws of the State of California whose members are property owners and taxpayers residing in and paying taxes to the City of Sunnyvale. Petitioner’s mission is to preserve and protect the qualities of life of the residents and visitors to the West Sunnyvale area of the City of Sunnyvale. To this end Petitioner Sunnyvale West Neighborhood Association, or the members thereof, have participated in all of the administrative reviews by the Respondent City of the proposed extension of Mary Avenue. Petitioner is suing on behalf of its members who are taxpayers, property owners, renters, new and longtime resident of Sunnyvale. Petitioners William Mathews, Eleanore M Hansen and Tammy Salans are property owners and taxpayers residing within the City of Sunnyvale. Petitioners have exhausted all available administrative remedies and have no adequate remedy at law. Petitioners in bringing this action are acting as private attorneys general pursuant to Code of Civil Procedure §1021.5

 

II

     Respondent City of Sunnyvale City Council is the duly elected governing body of the City of Sunnyvale charged with the responsibility of carrying out and enforcing all applicable state laws when taking actions on behalf of the City of Sunnyvale. Particularly, it is required to comply with the California Environmental Quality Act (CEQA), Public Resources Code Section 21000 et seq when making administrative decisions which may have significant adverse environmental impacts.

III

     On October 28, 2008, after a public hearing thereon, Respondent City of Sunnyvale City Council approved the Mary Avenue Extension Project. Prior to approving the project, Respondent reviewed and approved as adequate an Environmental Impact Report (EIR) purportedly prepared in compliance with CEQA. In fact the EIR was legally deficient and failed to perform its full disclosure duty to the public, the Respondent, and to the other governmental agencies which must review this project. The EIR failed to provide a full and adequate disclosure of the environmental impacts that can reasonably be expected from the project because, inter alia, the baseline for analysis is wrong. The EIR uses 2020 instead of current baseline. There is no way anyone can ascertain the impacts of the project within the next 5 years from reading the EIR. The EIR assumes without basis that the project does not increase traffic generation either locally or regionally. The EIR fails to adequate discuss traffic impacts in the near, 3 to 5 year, term; it fails to adequately discuss noise and air pollution impacts; it fails to discuss the impacts of raising a stream of automobile traffic 50 feet above ground level at night next to the flight path into Moffett Field. The EIR fails to address any impacts the automobile headlights may have on aircraft landing at Moffett Field or on nighttime glare in the general area.

IV  

      The failure to cause to be prepared and considered a legally adequate Environmental Impact Report is contrary to law and an abuse of discretion. For each of the foregoing reasons Respondent’s compliance with the duty under CEQA to prepare an EIR is legally deficient. Respondent City of Sunnyvale City Council abused its discretion by failing to perform its ministerial duty required by law to have caused to be prepared and considered a legally adequate EIR prior to its approval of the Mary Avenue Extension Project.

Wherefore Petitioners pray for relief as set out below.

SECOND CAUSE OF ACTION

V

The allegations set out in Paragraphs I through IV of the First Cause of Action are incorporated herein as though set out in full.

VI

For each and every significant adverse environmental impact identified in a project EIR, the reviewing agency must either adopt any mitigations measures that will reduce the significance of the environmental impacts or adopt findings explaining why it did not adopt such mitigation measures. In this instance the EIR identified the intersection of Mary and Maude Avenues as experiencing a drop in the level of traffic service, LOS, from “D” to “E” as a result of this project. This drop in the level of service constitutes a significant adverse environmental impact for which the adoption of mitigation measures would be mandatory in lieu of adopting findings as to why the mitigation measure was not adopted. Because the EIR identified a mitigation measure that would avoid the drop in LOS referred to above, Respondent had a ministerial duty to adopt the mitigation measure as part of the project conditions of approval, or to adopt findings explaining why such adoption was not possible or appropriate. Because Respondent failed to either adopt the mitigation measure or to adopt findings, it abused its discretion and proceeded contrary to law.

Wherefore Petitioners pray for relief as follows:

1.      For alternate and peremptory writs of mandate compelling Respondent City of Sunnyvale City Council to set aside its approval of the Mary Avenue Extension Project, unless and until it has caused to be prepared and considered a legally adequate Environmental Impact Report for the proposed project;

2.      For alternate and peremptory writs of mandate compelling Respondent City of Sunnyvale City Council to set aside its approval of the Mary Avenue Extension Project until it has considered and adopted mitigation measures necessary to reduce significant adverse environmental impacts or has adopted appropriate findings explaining why it has failed to include such mitigation measures into the project;

3.      For an award of costs and reasonable attorneys fees pursuant to Code of Civil Procedure §1021.5;

4.      For such other and further relief as the Court deems just and reasonable.

 

 

Dated this 11th day of November, 2008

 

 

 

 

 

ALEXANDER T. HENSON,

SB#53741

 

VERIFICATION

 

 

      I, Alexander Henson declare that I am an attorney licensed to practicwe in the State of California with my principal office at 13766 Center Street, Suite 27, Carmel Valley, Monterey County, California. I am making this verification on behalf of my clients who are presently out of the county where my office is located. I have read the foregoing PETITION FOR WRIT OF MANDATE and am familiar with the contents thereof which are true or which I am informed they are true.

I declare under penalty of perjury the foregoing is true and correct. Executed this 12th day of November, 2008, in Carmel Valley, Monterey County, California.

 

 

 

 

 

Alexander Henson

 

  If after reviewing this web site and the Mary Avenue wiki, if you should want to make a contribution towards the costs of litigation to de-certify the Mary Avenue Extension Project Environmental Impact Report (EIR), which contribution we expect to be largely if not totally refundable after successful litigation, you should prepare a check payable to the Law Office of Alexander T. Henson, and mail it to Sunnyvale West Neighborhood Association, P.O. Box 70581, Sunnyvale, CA  94086-1581 or to the Law Office of Alexander T. Henson, 13766  Center Street, Suite 27, Carmel Valley, CA  93924.  You should make the notation "MAEP -web" on your check.