06-073 Rhoda Fry Settlement1
2
3
4
5
6
7
sl
9'
to
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
JEFFREY S. HARE SSN 120880
A PROFESSIONAL CORPORATION
501 STOCKTON AVENUE
SAN JOSE, CA 95126
Phone: 408 - 279 -3555
Fax: 408- 279 -5888
Attorney for Petitioner
RHODA FRY
RHODA FRY,
VS.
D E C E
J U L 2 7 2006
CUPER INO CITY CLERK
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
Petitioner,
CITY OF CUPERTINO, a California municipal
corporation;
Respondent.
Case No.: 0 0 C 0 (6
PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
CEQA: PRC § 21167
Petitioner RHODA FRY ( "Petitioner ") hereby petitions this Court for a writ of mandate
pursuant to Sections 21167, 21168 and § 21.168.5 of the California Environmental Quality Act
( "CEQA ", Public Resources Code § 21000 et seq.), and Code of Civil Procedure § 1094.5, and
alleges as follows:
INTRODUCTION
1. This Petition seeks to compel the City of Cupertino (sometimes referred to as "CITY ")
to set aside its decision on June 20, 2006, adopting a Mitigated Negative Declaration ( "MND ") for a
project consisting in part of the conversion of a large scale commercial picnic area to a community
PETITION FOR WRIT OF MANDATE - 1
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
park and opening a trail head area io =ihe Stevens Creels Trail in the area known as Blackberry Farm
Parkin Cupertino. In adopting the MND, the City of Cupertino failed to adequately consider the
significant impacts that the prcj get would have on the neighborhood in terms of traffic, noise and
safety; failed to mitigate these impact's; failed to consider feasible alternatives; and failed to evaluate
the cumulative impacts of this project and other factors, including the foreseeable impacts of linking
the Blackberry Farm segment of the Stevens Creek Trail to the rest of Stevens Creek Trail and the
rest of the Santa Clara Valley Trail system.
2. The proposed Stevens Creek Corridor Park Project (referenced hereinafter as the
"Project "), is described as a Park Master Plan and Restoration Plan for the 60 -acre Stevens Creek
Corridor Park located within the City of Cupertino. The Project itself consists of plans to converting
the City -owned Blackberry Farm picnic grounds into a community part(, restoring in- stream and
riparian habitat along sections of Stevens Creels within the 100 -year floodplain, constructing a 5,900
linear feet of an all - weather trail, and developing new park and golf maintenance facilities. In
addition, the plans call for construction of an environmental education center at McClellan Ranch,
which lies at the southern boundary of the Project area.
This Petition seeks to compel the City of Cupertino to comply with the California
Environmental Quality Act ( "CEQA "), California Public Resources Code §21000 et seq., including,
at a minimum, to conduct a proper initial study and identify all significant impacts, identify and
evaluate reasonable alternatives, identify and evaluate relevant cumulative impacts, and identify and
impose appropriate mitigation measures as required under CEQA.
GENERAL ALLEGATIONS
4. At all times mentioned herein, RHODA FRY has been and is currently residing at
10351 San Fernando Avenue, Cupertino, California, immediately adjacent to the site of the Project,
and would be directly affected by the Project.
PETITION FOR WRIT OF MANDATE - 2
M
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5. At all times mentioned herein, respondent City of Cupertino ( "CITY ") was and is a
municipal corporation and general law city located in Santa Clara County. CITY is listed as both the
applicant and the Lead Agency under CEQA for the proposed Project. The Project will be
constructed on land owned.by the CITY and on land owned by the Santa Clara Valley Water District
and leased to the CITY. CITY, as Lead Agency, has the discretion to adopt the Mitigated Negative
Declaration, and in fact adopted the Mitigated Negative Declaration at a City Council meeting held
on June 20, 2006.
6. The area encompassed by the proposed Project lies between Stevens Creek Boulevard
to the north and McClellan Road to the south, and runs along both sides of a meandering segment of
Stevens Creek McClellan Ranch and the community gardens lie in the southern portion of the
Project -area. Stevens Creek meanders in a general northeasterly direction around McClellan Ranch,
then northerly through the area known as Blackberry Farm Park, which consists of a 1,100 space
parking lot, swimming pools and other facilities, playground areas and picnic areas. To the north and
east of the parking lot lies the Blackberry Farm Golf Course, also owned and operated by the City of
Cupertino. To the east of the point where Creek meets Stevens Creek Boulevard at the northern
boundary of the Project area lies the 91 -space parking lot for the Golf Course and the Blue Pheasant
Restaurant. The Stocklmeir property, which includes the historic orchard, lies to the west.
According to the Mitigated Negative Declaration (MND) prepared for the City of Cupertino by
Thomas Reid Associates, dated April 2006 (hereinafter "MND "), the Stevens Creek Corridor Park
Project evolved out of a series of studies, plans, stakeholder and task force meetings, visioning
processes, etc., and a partnership with the Santa Clara Valley Water District. Ultimately, the Project
was defined, in relevant part, as a conversion of what had been a commercial picnic area that
operated 100 days per year (Memorial Day to Labor Day) with as many as 4,000 visitors, to a
" community park" that would operate 365 days per year but would accommodate only up to 800
visitors during peak periods. The parking lot would be demolished and reduced from 1,100 spaces to
PETITION FOR WRIT OF MANDATE - 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
around 350 spaces; the Creels would be relocated, and the City would construct an 8 -foot wide, all -
weather trail for pedestrian and bicycle use along a 5,900 linear foot (1.1 mile) distance through the
park.
M
7. The true names and capacities of the real parties in interest and respondents Roes 1
through 100, inclusive, are unknown to Petitioners who are informed and believe, and based thereon
allege, that each of these fictitiously named parties has an interest in the Proposed Project as
hereinafter defined. Petitioner will amend this petition to state their true names and capacities when
the same have been ascertained.
8. On or about June 20, 2006, following a public hearing attended by numerous
individuals, including Petitioner, neighbors and other concerned citizens, the City Council of the City
of Cupertino adopted a Mitigated Negative Declaration for the Stevens Creek Corridor Park Project
and took other actions related to the Project. Through oral testimony and submittal of written
comments, Petitioners and other interested persons submitted evidence in opposition to the proposed
Project and raised the legal deficiencies asserted in this Petition.
9. On or about June 27, 2006, City filed a Notice of Determination with the Office of the
County Clerk for the County of Santa Clara. Petitioner is informed and believes, and based thereon
alleges, that the posting period for the Notice of Determination terminates on July 27, 2006,
10. This Petition for Writ of Mandate. is filed pursuant to CEQA, Public Resources Code
§§ 21167, 21168 and § 21168.5, and Code of Civil Procedure § 1094.5.
11. Pursuant to Public Resources Code § 21167.5, Petitioner has served Respondent City
of Cupertino with written notice of the commencement of this action. Proof of Service of notice and
service is filed concurrently herewith and incorporated by reference herein.
12. Pursuant to Public Resources Code § 21167.7 and Code of Civil Procedure § 388,
Petitioner has served the California Attorney General with a copy of this Verified Petition, and Proof
of Service of notice and service is filed concurrently herewith and incorporated by reference herein.
PE'T'ITION FOR WRIT OF MANDATE - 4
1
2
3
4
5
6'
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
13. Venue is appropriate pursuant to Code of Civil Procedure § 394, which provides in
pertinent part that an action or proceeding against a city or local agency may be tried in the county in
which such city or local agency is situated. The City of Cupertino is located in the County of Santa
Clara, State of California.
14. In bringing this action, Petitioner confers a significant benefit upon the citizens of
Cupertino and the public generally, and upon prevailing, is entitled to recover reasonable attorney
fees under Code of Civil Procedure § 1021.5.
15. Respondent CITY's adoption of the Mitigated Negative Declaration on June 20, 2006,
constituted a prejudicial abuse of discretion in that CITY failed to proceed in the manner required by
law.
a. Respondent CITY's use of a Mitigated Negative Declaration is improper and
� contradictory to the clear and unequivocal requirements under CEQA. Under CEQA, a MND can be
used where the initial study has identified potentially significant effects, but (1) revisions to the
project made by, or agreed to by, the applicant before the proposed negative declaration and initial
study are released for public review would avoid or mitigate the effects to a point where clearly no
significant effect would occur, and (2) 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. (CEQA Guidelines, § 15369.5, Public Resources Code § 21064.5). It is well settled
under the law that it is impermissible to specify proposed mitigation measures to be adopted at a later
date. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296. A review of the record before
the City of Cupertino will disclose that on May 23, 2006, in response to a direct question posed by
the Chair of the Planning Commission to the City Director of Parks and Recreation, Therese Smith,
concerning the impact of opening Blackberry Farm Park to trail users from other segments of the
Stevens Creek Trail (estimated to add 89,000 users annually per MND), the response was that "future
trail connections" will be reviewed at a later date. Staff, without citing to any specific studies or
PETITION FOR WRIT OF MANDATE - 5
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
1s
19
20
21
22
23
24
25
analysis regarding use of the trail by bicycle users trying to connect with Linda Vista Park and
Stevens Creek Park, simply offered an opinion to the effect that "I think it would be a fairly minor
impact, but we could analyze that further at that tune." (Planning Commission Minutes, 5123106;
emphasis added.) Sundstrom stands for the principle that it is impermissible under CEQA to defer
analysis and mitigation of an identified impact, Moreover, the County of Santa Clara Parks and
Recreation Department, in its written responses to the Notice of Intent to Adopt the MND, stated that
the Master Plan should take into consideration connections to "existing and future regional trails,
particularly segments of Stevens Creek sub - regional trail as they will ultimately connect to Stevens
Creek County Park and potentially to Rancho San Antonio Park." (County Letter dtd. 512512006).
The County letter went on to state that the Master Plan "should, therefore, evaluate potential or
cumulative impacts that may arise Rom implementation of the project ... and potential traffic and
circulation conflicts." (Id.) Respondent abused its discretion by not proceeding in the manner
I required by law, by failing to consider cumulative impacts. MND does not adequately consider or
analyze the potential, foreseeable and cumulative impacts of creating a trail segment that will
eventually link to other segments of the County's trail system, and elects to improperly defer analysis
to a future time.
b. The MND fails to adequately assess the traffic impact of opening the park to year-
round use, and fails to mitigate the impact resulting from the loss of parking capacity. The MND
concludes that on weekend days, there would be "less traffic on most of the nearby roadway
segments" due to a "significant reduction in picnicking at Blackberry farm.." (MND, 3 -106). The
MND also notes that weekday auto trips would increase from around 576 to 769 vehicle trips per day
-- an increase of 33.5 %. (MND, 3 -107). According to the MND, the addition of new programs woulc
account for 71 % of the new weekday auto trips, and increased participation in existing program
activities would make up the balance. The MND notes that current parking capacity in three lots is
around 1,222 parking spaces, with 91 for the golf course and restaurant on the north, 31 spaces at
PETITION FOR WRIT OF MANDATE - 6
1
2
3
4•
5
6
7
8
9
10
11
12
13
14
15
16
17
1s
19
20
21
22
23
24
25
McClellan Ranch on the south, and 1,100 spaces for the Blackberry Farm picnic, pool and activity
sites. (MND, 3 -110). Hexagon's own analysis of the parking demand concluded that parking
demand in the northern parking area (off Stevens Creek Blvd.), would increase by 13 to 26 percent,
or 20 spaces, to include the Living History Center at the Stocklmeir site. The Hexagon analysis
mentions that parking demand for the central parking area (currently 1,100 spaces), would be
"significantly affected by the proposed change in park operations." (MND, 3 -112; emphasis added).
Additional activities, including recreational swimming, trail access, community events, swimming
lessons and day camping would generate parking demands that currently do not exist." (ld.;
emphasis added.) Despite acknowledging that the Project will add several activities and programs
that currently do not exist, the City continues to insist that the reduction in total parking will limit the
impacts. What is not included in the analysis is any adequate consideration of the impact of the
modification of the programs and reduction in parking spaces on the local neighborhood. Vehicles
unable to find parking in the central lot area will be forced to circulate in the surrounding residential
neighborhood and/or park illegally, resulting in adverse environmental impacts on a year round basis
that are experienced generally only during a 100 -day period each year.
c. The MND incorrectly concludes a reduced impact due to the reduction in parking.
Several times in the record and throughout the MND, the analysis points to the decision to reduce the
size of the central (Blackberry Farm picnic area) parking lot from 1,100 spaces to around 350, and to
reduce the capacity of the picnic events from the current capacity of up to 4,000 participants down to
800 participants. This decision is cited repeatedly as the primary justification for concluding that the
Project will have a "less -than- significant" impact. The numbers do not accurately reflect the real
picture. The record will show that picnic use during the 100 -day period that the Park is open, the
number of times that groups larger than 500 people use the facility is limited to around 13 (4
weekends, 9 weekdays), and the number of times that groups larger than 1000 use the facility is only
three (3) times out of 100 days. In fact, the number of total users exceeds 2,000 participants on only
PETITION FOR WRIT OF MANDATE - 7
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3..
five (5) days per year, and only one day per year does the number of users exceed 3,000. Therefore,
the "4,000" represents a phantom capacity rarely reached. The actual, daily average use during the
100 -day season is around 350 persons during weekdays, somewhat more on weekends, for a total,
annual use during the season of around 95,000 participants based on the City's own figures. This
number does not include "casual" visitors to the park during the remaining 265 days of the year.
Therefore, reducing the size of the parking lot and thereby reducing the cLqpacily to around 800 only
serves to reduce actual use on a limited number of days. At the same time, opening park on a
year round basis and adding new programs and the new trail will actually increase — not decrease --
total use. By the City's own estimates, it is expected that approximately 50,000 people will use the
reduced picnic and other facilities during the 100 -day "season." In addition, the MND estimates that
upwards of 89,000 people will use the new trail over the course of a year — and this figure did not
take into account any increase in use which would occur when the trail is linked to other trails and
parks within the regional system. Therefore, by the City's own estimates, the total number of
potential users will increase from 95,000 to almost 170,000 (80,000 picnic users plus 89,000 trail
users). While there maybe some overlap in joint uses (i.e., picnic users who use the trail), the
number does not fully reflect potential increases that could result should Blackberry Farm become a
regional trail head to an expanded Stevens Creek Trail system when it is eventually completed.
d. Respondent has further abused its discretion by failing to consider feasible
alternatives, such as moving the main entrance to Stevens Creek Blvd., instead of using the
substandard entry off San Fernando Avenue and Byrne. The impacts of using this narrow entry to tN
central parking lot have been well - documented in the record, but even at worst, the neighboring
residents suffered with the knowledge that the park was only open for the approximately 100 -day
period. Beyond that, they could enjoy the peace and quiet and could walk through the park and creek
area. Under the proposed changes anticipated in this Project, the park will be open to the public 365
days a year, 100 of which will continue to be fully utilized as before (the only limitation being that
PETITION FOR. WRIT OF MANDATE - 8
2
H
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the so- called "capacity" has been reduced to 800 persons), several new programs will be added, and
the trail opens the park to literally thousands of users who up to now have not had any access.
Reducing the parking area capacity of the central parking area only creates the potential for drivers
unable to find parking on busy days to circulate through the neighborhood with adverse impacts
including noise, pollution, and threats to pedestrian safety. No reasons have been provided by
Respondent as to why the primary access could not be shifted to Stevens Creek Blvd., other than the
implied - but - not - analyzed impacts on the City -owned golf course. Respondent has abused its
discretion by not proceeding in the manner required by law under CEQA to provide a meaningful
analysis of feasible alternatives.
e. Respondent has abused its discretion because the decision is not supported by
findings. In adopting the Mitigated Negative Declaration ( "MND "), Respondent prejudicially abusec
its discretion under CEQA by (a) failing to make findings regarding the Project's adverse effects on
the neighborhood supported by substantial evidence, (b) by failing to consider reasonable and
feasible alternatives to the Project; (c) failing to evaluate the cumulative impacts of the Project and
other approved projects in the vicinity; and (d) failing to properly identify and require appropriate
mitigation measures which would eliminate or substantially lessen significant environmental impacts
of the Project. As reflected in the Minutes of the City Council Meeting for June 20, 2006, the
Council made several modifications to the Initial Study and the MND as a consequence of comments
received from the public, and amended several of the impact categories from "No Impact" to "Less
than Significant," or "Less than Significant with Mitigation."
12. Respondent has been advised by County Department of Parks and Recreation to
consider potential and cumulative impacts of the Project, specifically with respect to opening this
segment of the Stevens Creek trail, but Respondent adopted the MND without any attempt to
evaluate, let alone mitigate, these impacts. Moreover, although conceding that several impacts had
been incorrectly labeled in the Initial Study, Respondent failed to include mitigation measures in the
PETITION FOR WRIT OF MANDATE - 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Project prior to circulation of the draft environmental documents, instead amending the Initial Study
after -the -fact to conform to the evidence presented at the hearing, in violation of the requirements for
use of a mitigated negative declaration under CEQA.
a. Respondent acknowledges that the traffic study concluded that the parking facility
located on the north end near the Blue Pheasant Restaurant cannot be expanded to handle the total
number of parking spaces to meet projected demand, and added a mitigation to utilize approximately
12 curbside parking spaces along Stevens Creek Blvd. during peak periods. (Response to Comments,
pp. 7-8). Respondent does not provide any analysis of the impact of adding curbside parking along
heavily traveled Stevens Creek Blvd. for this purpose, only noting that since the trail would only be
used during the day, "the existing parking problems at night would not be affected by this Project."
(Id.). In order to justify the use of a Mitigated Negative Declaration under CEQA, the mitigation
measures must be must be agreed to or already made by the applicant before circulation of the
environmental documents for public review. (Public Utilities Code §§ 21064.5, 21080.)
b. Respondent acknowledges that that the trail portion of the Project may possibly
connect to another neighborhood park (Linda Vista Park) and to a regional park. (Stevens Creek
County Park) in the future, but discounts the impact asserting that the number of users would be
limited by the conditions of the adjacent terrain, and merely states in conclusory fashion "It is
extremely unlikely that this level of trail use will actually occur." (Response to Comments, p. 14).
Taken in context with the earlier comments by Respondent's Director of Parks and Recreation that
consideration of such impacts could be deferred until a future time, it is clear that Respondent has
abused its discretion by not proceeding in the manner required by law by failing to consider potential
cumulative impacts.
ll
1/
PE'T'ITION FOR WRIT OF MANDATE - 10
I
2
3
4
5
6
7
s
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PRAYER FOR RELIEF
WHEREFORE, RHODA FRY prays judgment as follows:
A. For a peremptory writ of mandate pursuant to dirccting Respondent City of Cupertino
to vacate and set aside its determination, finding and adoption of the Mitigated
Negative Declaration for the Stevens Creed Corridor Park Project, and farther
directing Respondent to prepare, circulate and consider a new initial study and
enviromnental assessment of all potentially significant impacts, including noise and
traffic, as well as of all applicable cumulative impacts and feasible alternatives, and
otherwise comply with CEQA.
B. For an award of costs incurred herein, including an award of reasonable attorneys fees
pursuant to statute, and
C. For such other and farther equitable or legal relief as the Court deems just and proper.
Date: July 26, 2006 JEFFREY B. HARE
A Professional Corporation
By:
J ffr B. Hare
A orncy for Petitioner
RHODA FRY
MEMORANDUM OF POINTS AND AUTHORITIES
�. CITY'S USE OF MI'T'IGATED NEGATIVE DECLARATION IS IMPROPER
SIGNIFICANT IMPACTS HAVE NOT BEEN PROPERLY MITIGATED
Under CEQA (Public Resources Code § 21000, et seq.), a Mitigated Negative Deelaration is
permitted only where_ potentially significant effects have been identified in the initial study and (1)
revisions in the project plans or proposals agreed to by the application before the MND and the initial
study are released for public review would avoid or mitigate the effects to a point where clearly no
PETITION FOR WRIT OF MANDATE - 11
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
is
19
24
21
22
23
24
25
significant effects would occur, and there is no substantial evidence that the project, as revised, may
have a significant effect on the environment. 14 Cal. Code of Regulations (CEQA Guidelines) § §
15070, 15369.5, PRC § 21064.5. CEQA expressly requires that the proposed mitigation measures
must be agreed to or made a part of the project before circulation of the MND and the initial study. It
is impermissible to specify proposed mitigation measures to be adopted or implemented at a later
date. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296.
The Administrative Record, including the minutes of the City Council's meeting held on July
20, 2006, will establish not only that there axe a number of potential, significant effects already
identified in the initial study that have not been adequately mitigated, but that design and operational
changes to the Project may generate even more. Most significantly, despite being urged to consider
the potential and cumulative impacts from opening a trail with potential links to local and regional
parks and trails, Respondent instead chose to simply assert that the unsubstantiated opinion that such
impacts would be "unlikely" and would be studied at a later date.
B. CITY MUST REQUIRE AN EIR IF PRESENTED WITH SUBSTANTIAL EVIDEN
SUPPORTING A FAIR ARGUMENT THAT SIGNIFICANT IMPACTS MAY
RESULT FROM A PROJECT, EVEN THOUGH THERE IS SUBSTANTIAL
EVIDENCE TO THE CONTRARY.
CEQA is intended to be interpreted in such a manner as to afford the fullest possible
protection to the environment. Friends of Mammoth v. Board of Supervisors (1972), 8 Cal.3d 247.
The lead agency must consider the whole of an action, not simply its constituent parts, when
determining whether it will have a significant environmental effect. Citizens Assoc. for Sensible
Development of Bishop Area v. County of Inyo (1985) 172 Calo.App.3d 151. If a lead agency is
presented with a fair argument that a project ma have a significant effect on the environment, the
lead agency shall prepare an EIR even though it may also be presented with other substantial
PETITION FOR WRIT OF MANDATE - 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
19
19
20
21
22
23
24
25
evidence that the project will not have a significant effect. (CEQA Guidelines §15064(f); No Oil,
J Inc, v. City of Los Angeles (1974) 13 Cal.3d 68.)
The Administrative Record will disclose that the City Council was presented with numerous
documents, letters, and reports documenting potentially significant effects of the proposed Project.
Dozens of speakers submitted comments and correspondence urging the City to consider impacts on
habitat, the creek, and the surrounding neighborhood residents. The County of Santa Clara
Department of Parks and Recreation urged the City to consider potential and cumulative impacts of
the addition of this segment of the trail to the County trail system. Instead of reducing park use, the
Project is, in fact, an expansion of use —adding recreational programs and several thousand visitors
and extending the operating days from 100 a year to a 365 -day, year -round facility.
C. CITY'S ADOPTION OF THE MITIGATED NEGATIVE DECLARATION
CONSTITUTED AN ABUSE OF DISCRE'T'ION
An 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. If the decision is not supported by substantial evidence, the abuse of
discretion is prejudicial. CCP § 1094.5; Topanga Ass'n for a Scenic Community v. County of Los
Angeles (1974) 11 Cal.3d 506, 515.
Respondent failed to comply with CEQA on a number of levels. The City failed to ensure
that all identified significant effects had been mitigated or eliminated Rdpr to circulation of the initial
study and proposed MND, as required, and instead adopted the MND despite evidence that the site
design and certain critical operational elements had not been finalized. The MND does not contain
any attempt to analyze or mitigate potential or cumulative impacts from the addition of 8 9, 000 new
users on a yeas round basis, or the possibility that the trail segment will become linked to regional
PETITION FOR WRIT OF MANDATE - 13
I and local park and trail systems. Therefore, Petitioner submits that the decision to adopt the
2 Mitigated Negative Declaration constituted a prejudicial abuse of discretion and should be set aside.
3 CONCLUSION
4
Petitioner respectfully submits that Respondent's adoption of the Mitigated Negative
5
Declaration constituted an abuse of discretion and should be set aside, and that Respondent should be
6
directed to comply with CEQA in all aspects based on the fact that the City of Cupertino was
7
presented with substantial evidence that the Project would have significant effects.
8
9
10 VERIFICATION
I I I am and at all relevant times herein been a resident of the City of Cupertino, and my address
12 is 10351 San Fernando Avenue, Cupertino, 95014. 1 have read the foregoing Petition and am familial
13 with its contents. The facts recited in the Petition are true of my personal knowledge.
14 I declare under penalty of perjury under the laws of the State of California that the foregoing
15 is true and correct.
16
Date: July 26, 2006
17
Rho a Fry
18
19
20
21
22
23
24
25
PETITION FOR WMT OF MANDATE - 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
JEFFREY B. HARE SBN 120880
A PROFESSIONAL CORPORATION
501 STOCKTON AVENUE
SAN JosE, CA 95126
Phone: 408 - 279 -3555
Fax: 408- 279 -5888
Attorney for Petitioners
RHODAFRY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
RHODA FRY,
Petitioner,
VS.
CITY OF CUPERTINO, a California municipal
l corporation;
Respondent.
Case No.:
NOTICE OF INTENT TO FILE CEQA
PETITION FOR WRIT OF MANDATE
TO: Respondent CITY OF CUPERTINO.
PLEASE TAKE NOTICE that pursuant to California Public Resources Code § 21 167.5,
Petitioner RHODA FRY intends to file a petition under the provisions of the California
Environmental Quality Act ( "CEQA," PRC § 21000 et seq.), against Respondent CITY OF CUPER-
TINO, challenging its decision to adopt a Mitigated Negative Declaration for the proposed Stevens
Creels Corridor Park Project. A copy of the petition to be ailed by.Petitioner is attached.
Date: July 26, 2006 Jeffrey B. Hare
A Professional Corporation
By:-
� -
rey B. Hare
Attorney for Petitioner
NOTICE OF INTENT TO FILE CEQA PETITION Page I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
JEFFREY B. HARE SBN 120880
A PROFESSIONAL CORPORATION
501 STOcxT4N AVENUE
SAN JOSE, CA 95126
Phone: 408-279-3555
Fax: 408 - 279 -5888
Attorney for Petitioner
RHODA FRY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
RHODA FRY, ) Case No.:
Petitioner, } REQUEST FOR PREPARATION OF
} ADMINISTRATIVE RECORD OF
VS.) PROCEEDINGS
}
CITY OF CUPERTINO, a California municipal
corporation;, )
Respondent. }
Pursuant to Public Resources Code § 21167.6, Petitioner RHODA FRY ( "Petitioners ") hereby
requests that Respondent CITY OF CUPERTINO prepare the administrative record of Respondent's
proceedings relating to this action. Petitioner requests that Respondent include in the record all
documents, including all transcripts and summaries, minutes of meetings, notices, correspondence,
reports, studies, proposed decisions, final decisions, findings, and any other documents or records
relating to Respondent's determination to adopt the Mitigated Negative Declaration for the Project
known as Stevens Creek Corridor Park Project. The record shall include all documents prepared by
or on behalf of or submitted by the City of Cupertino, all staff reports and exhibits thereto, all internal
staff communications relating to the project, including e- mails, memos, and notes, and all other
REQUEST FOR PREPARATION OF ADMINISTRATIVE RECORD - 1 -
f ' n
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
studies and reports prepared for or on behalf of City, as well as all studies, reports and environmental
assessments referenced or relied upon in the preparation of those studies or reports. In addition, the
record shall include any and all communication including any letters, e- mails, faxes, and other forms
of communication received by Respondent related to the Project.
Petitioner will pay the reasonable costs of preparation of the record on notice of the estimated
costs of preparation. Petitioner reserves the option to stipulate as to the form and content of the
record to be lodged with the Court as a means to control the cost of preparation of the record and
avoid unnecessary duplication of documents.
DATED: July 26, 2006 JEFFREY B. HARE
A Professional Corporation
By.
J fr B. Hare
Attorney for Petitioner
Rhoda Fry
REQUEST FOR PREPARATION OF ADMINISTRATIVE RECORD - 2 -
PROOF OF SERVICE
I am employed in the County of Santa Clara, State of California. I am over the age of 18 and
not a party to the within action. My business address is 501 Stockton Avenue, San Jose,
California 95126.
On July 26, 2006, 1 served the foregoing documents described as:
I. NOTICE OF INTENT TO FILE CEQA PETITION FOR WRIT OF
MANDATE;
2. PETITION FOR WRIT OF MANDATE; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF; AND
3. REQUEST FOR PREPARATION OF ADMINISTRATIVE RECORD OF
PROCEEDINGS
on the interested parties in this action addressed as follows:
City Clerk
City of Cupertino
10300 Torre Ave.
Cupertino, CA 95014
BY MAIL, AS FOLLOWS:
Charles T. Kilian
City Attorney, City of Cupertino
Law Offices of Charles T Kilian
20410 Town Center Lane #210
Cupertino, CA 95014
I am "readily familiar" with the firm's practice of collection and processing
correspondence for mailing. Linder that practice it would be deposited with the U.S. postal
service on that same day with postage thereon fully prepaid at San Jose, California in the
ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date. is more than one day after
date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
Executed on July 26, 2006, at San Jose, California.
Je rey Hare
OFFICE OF THE CITY
ATTORNEY
20410 Town Center Lane, Suite 210
CITY OF Cupertino, CA 95014 -3255
Telephone: (408) 777 -3403
CU PE l __ EAX- (408)_717-3401
Charles T. Kilian, City Attorney
Eileen H. Murray, Assistant City Attorney
September 15, 2006
Jeffrey B. Hare, Esq.
501 Stockton Avenue
San Jose, CA 95126
Re: Rhoda Fry v City of Cupertino, Santa Clara Superior Court No.
106CV068007; Confidential Litigation Settlement Memorandum of
Agreement ( "MOA ")
Dear Mr. Hare:
This communication is in furtherance of pending litigation settlement discussions
between our respective clients, and as such is intended to be confidential for all purposes
and exempt from disclosure pursuant to Evidence Code Section 1151 and Government
Code Section 6254(b).
In addition, the settlement proposals contained herein have been prepared by the
senior staff of the City of Cupertino ( "City ") in light of our recent discussions, and as
such are not binding upon the City, a California municipal corporation and. a party to the
foregoing litigation. In order to become binding upon the City, all final settlement terms
must be ratified by the City Council of the City, in accordance with applicable law.
1. Clarifications. In response to a request by your client ( "Petitioner "), the
following information is intended to clarify certain features of the approved Stevens
Creek Corridor Park Master Plan ( "Project ").
A. Basketball Courts in the Blackberry Farm ( "BBF ") Recreational Area.
Two (2) new half -court basketball courts, in west bank group picnic area, are proposed in
the master plan for use by fee based customers during 100 -day operation only. The
existing softball, basketball and volleyball areas on the east bank will continue to
function until the small parking area is constructed. At the time this parking area is
constructed, the basketball and volleyball facilities would be eliminated. The softball
field will remain. A single replacement sport facility (volleyball or basketball) may be
rebuilt if space and/or interest exist.
Printed on Recycled Paper
B. Operational Features of Blackberry Farm. Picnic area Use.
Blackberry Farm picnic area facilities, including Swimming pools, will be for use by all
fee -based customers during 100 -day operation for recreational swim. No fee -use
activities will be allowed outside the 100 -day period.
C. rationale for Capacity and Operational Features of BBF and Steven Creek
Parking Lots.
The Council decided on a program that retained the golf course, reduced the picnic area
to an 800- person size and provided for a healthy amount of habitat restoration. It is
important to note that the minimum size necessary to keep the big Cupertino community
picnics in Cupertino like the Lions Club and Cupertino Community Service barbeques is
500. The 350 vehicle festival -style parking spaces for the picnic grounds were derived
by the use of auto occupancy (2.5 people per vehicle) and projections of parking
requirements based on planned activities at the activity sites within the Corridor.
D. Definition of BBF Snack .Bar Use.
Currently there is an existing snack bar with a window that opens towards to the pool and
operates during the 100 -day operation. The project proposes adding an outside window
so that people using the trail can purchase beverages and snacks without having to enter
the fee -based pool area.
E. Access to "rest Bank" Picnic Area.
A new 14 -foot wide pedestrianlbicycle /light duty vehicle bridge is proposed from festival
parking area and pool complex to the west bank picnic area and is to be used only for the
100 -day operation. Daring the "off season" period, the West Bank picnic area will be
accessible to pedestrians only (except for city maintenance vehicles).
H. Formal Settlement Procedure.
A. As soon as is practicable following execution of a tentative memorandum
of agreement ( "MOA ") between (i) your client and (ii) the City Manager or Acting City
Manager of City, City will prepare, pursuant to Section 15164 of the California
Environmental Quality Act ( "CEQA ") Guidelines, an "Addendum" to the Mitigated
Negative Declaration ( "MND ") previously approved by City on June 20, 2006. The
Addendum will contain the changes to the Project required by the MOA, and the
additional information necessary to be added to the MND in order to inform the public of
the agreed changes to the Project.
B. The City Council of City will consider the Addendum, together with the
MND, at a duly noticed public hearing. The City Council will retain discretion to
approve the Addendum, reject it, or approve it with modifications, and to make
appropriate Bindings of fact and law pertaining to the MIND and the Addendum.
2
C. If the City Council approves the Addendum in a forgo substantially
consistent with the terms of the MOA, as soon as is practicable thereafter, Petitioner will
move the court having jurisdiction to dismiss the foregoing lawsuit, with prejudice. Each
party to bear their own costs and fees, except that Respondent shall bear Petitioner's costs
for preparation of the administrative record..
111. Proposed Settlement Terms.
A. , Cooperation. The parties hereby agree to cooperate, in a timely manner,
in good faith implementation of the formal settlement procedure and implementation of
the settlement terms described in this MOA, and not to frustrate, oppose or denigrate
publicly the terns of this MOA.
B. Waiver. Petitioner hereby waives all legal objections to City's use of an
Addendum as the appropriate CEQA compliance procedure for implementing the MOA.
C. Task Force. Promptly following completion and official opening of the
planned trail connecting Stevens Creek Boulevard to BBF, as described in the MND, City
will form and convene an official. "Task Force" charged with responsibility to consider
and recommend to the City Council potential future changes to the Project's design,
operations and implementation schedule.
1. In particular, the Task Force will consider the advisability, features
and implementation of a program to replace some or all of the existing
infrastructure, commercial operations and other improvements. presently
comprising the Blackberry Farm picnic area, parking lot, snack bar and basketball
courts.
2. In particular, the Task Force will develop a proposal for long term
use of the park..
3. The membership of the Task Force shall be open to all
"stakeholders" and shall include residents from the immediate vicinity of the
Blackberry Farm picnic area.
D. Noise. City will implement a program for reducing noise generated by
maintenance machinery on the Blackberry Farm Golf Course, with the goal of not
increasing the present ambient noise level attributable to the combination of parr and
golf course maintenance machinery. Construction noise will be regulated by the
standards contained in City ordinances which regulate construction noise. City will
remove speed bumps on all streets near the park, used by Project construction traffic, for
the duration of construction, and will design post - construction speed bumps so as to
reduce ambient noise.
E. Parking Increase. City will provide for up to fifteen (15) curbside public
parking spaces along Stevens Creek Boulevard adjacent to the Blue Pheasant Restaurant.
City will eliminate all signage on the northern and southern ends of the corridor that
3
directs park users to the 13BF parking areas. During the 265 -day "off season" City will
reduce public parking in the 13BF parking lot to thirty -one (3 1) parking spaces, which, if
needed, may be expanded to no more than a total of 100 spaces. When the trail is fully
open, meaning connected from 13BF to Stevens Creek Blvd., busses and shuttles,
excepting vehicles for handicapped persons, will be prohibited from using the San
Fernando entrance. The existence of the off-season parking spaces shall not be promoted
by the City as being available for overflow or additional parking for other uses within the
corridor by means of signs, flyers, or other publicly distributed information (i.e., Web
sites, etc.).
F. Shuttle and Trail Connection Usea eg into BBF. City will allow (and
encourage) busses and shuttles serving 13BF to drop off and pick up park users at the bus
pull outs located at Stevens Creek Boulevard (existing) and at McCellan Road (planned).
G. Trail Use Restrictions. City will prohibit all motorized vehicles, including
electric scooters on park trails.
H. Tree Protection. Prior to the start of construction, the City will identify
and shark all trees to be removed during construction for the Project. The City will hire
an outside arborist certified by the International Society of Arboriculture or American
Society of Consulting Arborist to observe tree health throughout construction. The
arborist will provide regular recommendations to the City to ensure the health of trees
intended to remain after construction. The City will install protective chain link fencing
and/or orange construction fencing around the drip line of all trees in the proximity of the
construction zones to ensure that construction does not harm trees intended to remain in
the corridor.
1. Corridor Patrol. City will hire a Parks Service Officer that will provide patrol
and maintenance functions throughout the corridor.
J. Alcohol Restrictions, The City will enforce Ordinance Code Section
13.04.130a, which limits alcohol consumption to beer and wine and only in conjunction
with food.
K. Implement a Neighborhood Litter Control Program.
L. Implement Neighborhood Permit Parking if the neighbors wish it and the City
Council approves it (see Cupertino Municipal Code Chapter 11.27)
1<V. Rejected Settlement 'Perms.
A. Other than as described herein, the Project as approved by City in
June /July, 2006 will be implemented through its "Phase I" and "Phase 11" construction
phases, as designed and in accordance with the operational features described in the
Project.
B. Park operations will be implemented as described in the Project, both
within the 100 -day "picnic season" and within the remaining "restricted use." period.
4
V. Agreement by the Parties.
A. Petitioner's A reernent.
Having been fully advised by legal counsel of my choosing, I hereby agree to the
foregoing terms. s
Dated , 2006
Rhoda Fry
Petitioner in the above - captioned Attested.:
Lawsuit
of ey B. Hare
Attorney at Law
B. Respondent's Conditional Agreement.
Subject to subsequent ratification, modification or rejection by the City Council of the
City of Cupertino, I hereby agree to the foregoing terms.
kJ W v vRA x JL"O Vz
(for) City Manager, City of Cupertino
Respondent in the above - captioned
Lawsuit
Date &4 Je- -9- ( , 2006
Attested:
Charles T. Ki ban
Cupertino City Attorney
5
County of Santa Clara
Office of the County Clerk- Recorder
Business Division
County Government Center
70 West fiedding Street, E. Wing, I" Floor
San Jose, California 45110 (408) 299 -5665
ENVIRONMENT DECLARATION
For CLERK - RECORDER'S USE ONLY
�7
POSTED ON / `�� THROUGH g IN THE OFFICE OF THE COUNTY C K -R COR ! R ENDORSED
BREND D LINTY CL
BY DEPUTY JUL 13 2006
aram AamcwTar corner
I
Bw �t3ee
NAME OF LEAD AGENCY: Cit . of Cu ert:ino
NAME OF APPLICANT: City of Cupertino ULRK- RECORDER
FILE NO q q
CLASSIFICATION OF ENVIRONMENT AL DOCUMEN , 1 3 1 2
1. ( } NOTICE OF PREPARATION C/� Dept, of Fish and Game
2. { ) NOTICE OF EXEMPTION Re ceipt #
3. NOTICE OF DETERMINATION I
NEGATIVE DECLARATION PURSUANT TO P B IC RESOURCES CODE § 21080(C)
{ ) 1300.00 REQUIRED ($1250.00 STAT [LING FEE AND 50.00 COUNTY CLERK FEE)
( x) CERTIFICATE OF EXEMPTION AND/ R E MINIMUS IMP�CT FINDING STATEMENT
ATTACHED - 50.00 COUNTYCLERK F E REQUIRED f
4. NOTICE OF DETERMINATION
I
ENVIRONMENTAL IMPACT REPORT!'PURSU T TO PUBLIC RESOURCES CODE § 21152
( ) $900.00 REQUIRED ($850.00 STATE IL NG FEE AND $59.00 COUNTY CLERK FEE)
( } CERTIFICATE OF EXEMPTION AND/ R E MINIMUS IMPACT FINDING STATEMENT
ATTACHED - 50.00 COUNTY;`CLERK FEE REQUIRED
5. Other:
NOTICE TO DE POSTED FOR 30
THIS FORM MUST BE COMPLETED AND ATT)
DOCUMENTS LISTED ABOVE _(NCLUDZNG CC
CHECKS SHOULD BE MADE PAYABLE,TO : C
Board of Supervisors: Donald F. Gage, Bianca Alvarado, Pete
Acting County Executive: Peter Kutras, Jr.
f
I
DAYS;
I
'H! IED TO THE FRONT OF ALL ENVIRONMENTAL
IS) SUBMITTED I FOR FILING,
LINTY CLERK - RECORDER.
I
ugh, James T. Beall, Jr., Liz Kniss
I
1
I
�.T
413 U
CUPS TINO
NOTICE OF DETERM[INA.TION
EA- 2006 -01
Application CP- 2006 -01
City of Cupertino
At its meeting of June 20, 2006, the City Council of the City of Cupertino considered
conducting a phased construction program to convert a commercial picnic facility into a
neighborhood park; restore in- stream riparian habitat along sections of Stevens Creek
within the 100 year flood plain; enhance nearby upland oak woodland habitat; construct a
new 5,900 foot long, all weather trail and a new environmental education center;
demolish and rebuild existing park buildings and facilities on 60 acres of City and Santa
Clara Valley Water District owned lands.
The decision of the City Council was to approve said project. The City Council by filing a
Mitigated Negative Declaration on this project on June 28, 2006, has determined that the
project is consistent with the General Plan and there are no significant environmental
impacts. The Negative Declaration has been prepared pursuant to the provisions of State
and City guidelines. A copy of said Negative Declaration is available in the Office of the
City Cleric, 10300 Torre Avenue, Cupertino, California.
k
Grace Schmidt
Deputy City Clerk
City of Cupertino
California Department of Fish and Game
CERTIFICATE OF FEE EXEMPTION
De Minimis Impact Fi
Project Title/Location Name and Address of Project Prop onent'(inc lud e county):
Application No.: CP- 2006 -01 (EA- 2006 -01)
Applicant: City of Cupertino
Location: Stevens Creek Corridor Park Master Plan
City of Cupertino, County of Santa Clara
Project Description:
Conduct a phased construction program to convert a cormnercial picnic facility into a
neighborhood park; restore in- stream riparian habitat along sections of Stevens Creek within
the 100 year flood plain; enhance nearby upland oak woodland habitat; construct a new 5,900
foot long, all weather trail and a new environmental education center; demolish and rebuild
existing park buildings and facilities on 60 acres of City and Santa Clara Valley Water District
owned lands,
Findings of Exemption (attached required findings): . .
This is the redevelopment of an existing urban infilI site with no fish or wildlife impacts.
Certification:
I hereby certify that the lead agency has made the above findings of fact and that based upon
the initial study and hearing record the project will not individually or cumulatively have an
adverse effect on wildlife resources, as def ed ' Se tion 711.2 of the Fish and Game Code.
(CI1ief Planning Official)
Title: Director of Cornrnunity Development
Lead Agency: City of Cupertino
Date: -296
tannin e7 c EE EA200501 — 13 5 1
CITY OF CUPERTINO
MITIGATED NEGATIVE DECLARATION
As provided by the Environmental Assessment Procedure adopted by the City Council
of the City of Cupertino on May 27, 1973, and amended on March 4,1974, January 17
1977, May 1,, 1978, and July 7, 1980, the following described project was granted a
Mitigated Negative Declaration by the City Councii of the City of Cupertino on June 20,
2006
PROTECT DESCRIPTION AND LOCATION
Application No.: CF- 2006 -01 (EA-2006 -01)
Applicant: City of Cupertino
Location: Stevens Creek Corridor Park Master Plan
DISCRETIONARY ACTION REQUEST
UEST
Conduct a phased construction program to convert a commercial picnic facility; into a
neighborhood park; restore in- stream riparian habitat along sections of Stevens Creek
within the 100 year flood ' plain; enhance nearby upland oak woodland habitat;
construct a new 5,900 foot long, all weather trail and a new e.nvironmental education .
center; demolish and rebuild existing park buildings and facilities on 60 acres -of. City.
and Santa Clara Valley Water District owned lands.
FINDINGS OF DECISIONMAKING BODY
The City C ncil ted a Mitigated Negative Declaration since the project is
consisten ith e G neral Plan and there are no significant environmental impacts.
Steve Piasecki
Director of Community Development
CERTIFICATE OF THE CITY CLERIC
This is to certify that the above Mitigated Negative Declaration was filed in the Office of
the City Clerk of the City of Cupertino on JuU^, :�_ �_ / &
City Clerk
E-135
g1e7•c 1negEA200601