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1M. R, Wolfe & Associ
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22CV401205
Santa Clara — Civil
Mark R. Wolfe, CSB No. 176753
John H. Farrow, CSB No. 209221
M. R. WOLFE & ASSOCIATES, P.C.
580 California Street, Suite 1200
San Francisco, CA 94104
Telephone: (415) 369-9400
Fax: (415) 369-9405
mrw@mrwolfeassociates.com
Attorney for Petitioner
THE SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
CITIZENS FOR INCLUSIVE
DEVELOPMENT, an unincorporated
association,
Petitioner,
Vs.
CITY OF SAN JOSE,
Respondent;
EL PASEO PROPERTY OWNER, LLC;
SAND HILL PROPERTY, LLC; ALLISON
KOO; and DOES 1 through 25, inclusive;
Real Parties in
Interest.
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 7/22/2022 9:44 AM
Reviewed By: L. Quach-Marcella
Case #22CV401205
Envelope: 9521943
22C0V401205
Case No.:
PETITION FOR WRIT OF
MANDATE
ACTION BASED ON CALIFORNIA
ENVIRONMENTAL QUALITY ACT
(Code Civ. Proc. §1094.5; Pub. Res. Code §§
21168; 21168.5 et seq.)
PETITION FOR WRIT OF MANDATE,
Citizens for Inchisive Development v. City of San José
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INTRODUCTION
1. With this lawsuit, Petitioner CITIZENS FOR INCLUSIVE DEVELOPMENT
(“Petitioner”), challenges the June 21, 2022 final actions by Respondent CITY OF SAN JOSE
(“City”) certifying an environmental impact report (“EIR”) pursuant to the California
Environmental Quality Act (“CEQA”), Pub. Resources Code § 21000 et seq., and approving a
Planned Development Zoning, a subdivision, Planned Development Permit, Development
Agreement, Conditional Use Permit, Determination of Public Convenience & Necessity to allow
off-sale alcohol, and tree removal permits for the El Paseo & 1777 Saratoga Avenue Mixed-Use
Project (“Project”), a proposed mixed commercial and residential development on a 10.76- acre
site located at the intersection El Paseo de Saratoga and Saratoga Avenue in the City. The
Project’s owners and proponents ate Real Parties In Interest EL PASEO PROPERTY
OWNER, LLC, SAND HILL PROPERTY, LLC, and ALLISON KOO (together “Real
Parties”).
2. Petitioner contends the City’s approval actions violated CEQA. As certified by
the City, the Project’s EIR fails to include an accurate project description, and fails to adequately
identify, evaluate, and/or require mitigation for all significant direct and cumulative
environmental impacts the Project will cause. As a result, there is no substantial evidence in the
administrative record to support the City’s findings that the Project’s environmental impacts will
be less than significant after mitigation. Instead, substantial evidence shows the Project will have
several significant unmitigated environmental effects that the EIR either failed to identify, failed
to evaluate adequately, or failed to mitigate where feasible.
3. Petitioner further contends that the City violated the State Planning and Zoning
Law, Gov’t Code § 65000 ef seq., by approving the Project notwithstanding material
inconsistencies and incompatibilities with the goals, policies, and standards set forth in the City’s
General Plan.
4. Petitioner accordingly seeks a peremptory writ of mandate under Code of Civil
Procedure section 1094.5 and Public Resources Code section 21168 commanding the City to set
aside its approvals, and to reconsider its actions after fully complying CEQA. Petitioner further
» | PETITION FOR WRIT OF MANDATE
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1M. R, Wolfe & Associates, PC
580 California Street, Ste 1200
San Francisco, CA. 94104
(415) 369-400
mawolfeassociates.com
seeks a stay of the effect of the City’s actions during the pendency of these proceedings. Finally,
Petitioner seeks an award of costs and reasonable attorneys’ fees under Code of Civil Procedure
section 1021.5, together with any other relief the Court deems necessary and proper.
5. In support whereof, Petitioner alleges:
PARTIES
Citizens for Inclusive Development
6. Petitioner Citizens for Inclusive Development is an unincorporated association of
residents, citizens, property owners, taxpayers and electors residing in the City of San José. Its
organizational purpose includes advocating for just, equitable and responsible land use planning
and policy, as well as diligent enforcement of planning and environmental laws in San José.
a Petitioner’s membership includes but is not limited to San José residents Gary
Cunningham, Luann Abrahams, and David Abrahams, all of whom objected to the City’s
approvals of the Project orally and/or in writing prior to the close of the final public hearing on
the Project before the San José City Council.
8. Petitioner’s members maintain a direct and regular geographic nexus with the City
of San José and will suffer direct harm from any adverse environmental and/or public health
impacts caused by the Project.
9. Petitioner’s members have a clear and present tight to, and beneficial interest in,
the City’s performance of its duties to comply with CEQA. As San José citizens, property
owners, taxpayers, workers, and/or electors, Petitioner’s members ate within the class of persons
to whom the City owes such duties.
10. By this action, Petitioner seeks to protect the interests of its members and to
enforce a public duty owed to them by the City. Because the claims asserted and the relief sought
in this petition are broad-based and of a public as opposed to a purely private or pecuniary
natute, direct participation in this litigation by Petitioner’s individual members is not necessary.
11. Petitioner and/or its individual members presented oral and/or written
comments in opposition to the Project prior to and/or during the public hearings culminating in
the City’s March 15, 2022 actions approving the Project, and raised or supported all objections
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1M. R, Wolfe & Associates, PC
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(415) 369-400
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to the Project and alleged grounds for noncompliance with CEQA and other applicable law
presented herein.
City of San José
12. Respondent CITY OF SAN JOSE is a California Charter City situated in Santa
Clara County. On June 21, 2022 the City, acting through its City Council: (1) adopted a
resolution certifying the “El Paseo and 1777 Saratoga Avenue Mixed-Use Village Project
Environmental Impact Report,” and making certain findings concerning significant impacts,
mitigation measures, and a related Mitigation Monitoring and Reporting Plan for the Project;
(2)approved an Ordinance rezoning an approximately 10.76-gross acre site from the CG and CP
Zoning Districts to a CG(PD) Planned Development Zoning District; and (3) adopted a
resolution approving a Planned Development Permit, extended construction hours, and a
Conditional Use Permit and Determination of Public Convenience or Necessity to allow off-sale
alcohol at a planned grocery store within the Project.
13. At all times relevant, the City served as the “lead agency” under CEQA responsible
for evaluating the environmental impacts of the Project.
El Paseo Property Owner, LLC
14. Petitioner is informed and believes that Real Party In Interest El Paseo Property
Owner, LLC is a Delaware Limited Liability Company maintaining its principal place of business
in Santa Clara County. Petitioner is informed and believes that El Paseo Property Owner, LLC
is an ownet, sponsor, and/or proponent of the Project described, and is an applicant for and
recipient of the land use entitlements and approvals described herein.
15. El Paseo Property Owner, LLC is identified as a “Project Applicant” on a notice
of determination for the Project posted by the City in accordance with Public Resources Code
section 21152 on June 23, 2022.
Sand Hill Property, LLC
16. Petitioner is informed and believes that Real Party In Interest Sand Hill Property,
LLC is a Delaware Limited Liability Company maintaining its principal place of business in
Santa Clara County. Petitioner is informed and believes that Sand Hill Property, LLC is an
PETITION FOR WRIT OF MANDATE
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1M. R, Wolfe & Associates, PC
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owner, sponsor, and/or proponent of the Project described, and is an applicant for and
recipient of the land use entitlements and approvals described herein.
17. Sand Hill Property, LLC is identified as a “Project Applicant” in the record of
proceedings before City for the Project.
Allison Koo
18. Petitioner is informed and believes that Real Party In Interest Allison Koo is an
adult citizen domiciled in the State of California. Petitioner is further informed and believes that
Allison Koo is an ownet, sponsor, and/or developer of the Project, and was an applicant for and
recipient of the land use entitlements challenged herein.
19. Allison Koo is identified as a “Project Applicant” on a notice of determination for
the Project posted by the City in accordance with Public Resources Code section 21152 on June
23, 2022.
Real Parties In Interest Does 1 through 25, Inclusive
20. DOES 1 through 25 inclusive, are owners, sponsors, developers, applicants for,
and/or recipients of the land use entitlements challenged herein, whose identities are unknown
to Petitioner. Petitioner therefore names them by such fictitious names. Petitioner will seek leave
from the court to amend this petition to reflect the true names and capacities of DOES 1
through 25 inclusive if and when ascertained.
URISDICTION & VENUE
21. This action is brought pursuant to the writ of mandate provisions of Code of
Civil Procedure section 1094.5, and the judicial review provisions of Public Resources Code
section 21168. Venue is proper in Santa Clara County under Code of Civil Procedure section
395.
FACTUAL & PROCEDURAL BACKGROUND
22. The Project includes the demolition of approximately 126,345 square feet of
existing commercial buildings and the removal of 120 trees to allow the construction of four
mixed-use buildings consisting of 994 residential units and 165,949 square feet of commercial
space, including approximately 40,000 square foot Whole Foods grocery store.
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23. The project site is located within the Envision San José 2040 General Plan’s
(General Plan) Paseo de Saratoga Urban Village growth area (Horizon 3).1 The Urban Village
Plan for Paseo de Saratoga has not yet been adopted. The project proposes to develop the site
as a “Signature” project, in conformance with General Plan Policy IP-5.10. General Plan Policy
IP-5.10 allows residential mixed-use Signature projects to proceed within Urban Village areas
prior to the preparation of an Urban Village Plan if they meet certain specified criteria.
24. On October 15, 2021 the City released a draft EIR for public review and
comment. The draft EIR described the Project as the development of one of two development
options: a “Non-Education Mixed Use Option” consisting of 1,100 residential units and 165,000
square feet of commercial space, and an “Education Mixed Use Option” consisting of 730
residential units, 66,000 square feet of commercial space, and a 450,000 square foot educational
facility with dorm space. The draft EIR stated that the Non-Education Mixed Use Option was
the preferred option.
25. The draft EIR described the commercial component of both options in generic
terms only, providing no details as to what sort of commercial uses might eventually operate
within the Project. In its analysis of the Project’s potential environmental impacts, including
impacts on air quality, human health, noise, and traffic, the draft EIR assumed the commercial
component was a generic, non-grocery use. The draft EIR nowhere disclosed that a Whole
Foods grocery store was planned for approximately 40,000 square feet of ground floor
commercial space, even though on September 23, 2021, approximately three weeks before the
draft EIR was released, the City was in possession of a document titled “Whole Foods Market
Operations Plan” that plainly depicted plans for a future Whole Foods grocery store within the
Project.
26. The draft EIR purported to evaluate the Project’s consistency with the City’s
General Plan, including with Policy IP-5.10 governing development of “Signature” projects,
concluding the Project was consistent with all applicable provisions of the General Plan,
including density and height criteria for Signature projects.
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27. Various agencies, organizations, and individuals, including Petitioner’s members,
submitted written comments during the public review period objecting to impact analysis in the
draft EIR.
28. In January, 2022 various local news sources revealed that Whole Foods was the
intended occupant of an approximately 43,000 square foot commercial space within the Project.
29. In May, 2022 the City released a “First Amendment to the Draft EIR” for the
Project, which served as the final EIR for purposes of CEQA (“final EIR”). The final EIR
purported to respond to all comments timely submitted on the draft EIR, and included various
revisions to the text of the draft EIR. The final EIR nowhere disclosed that a Whole Foods
grocery store was part of the Project and did not modify any of the draft EIRs analysis or
conclusions with respect to environmental impacts from the Project’s commercial component.
30. On May 25, 2022 the City’s Planning Commission held a public hearing on the
EIR and Project. A staff report prepared for this hearing confirmed that Whole Foods grocery
store was planned for the Project, marking the first time the City disclosed this fact to the
public.
31. Before and/or during the hearing, Petitioner’s members and others presented oral
and/or written comments objecting to the Project, and/or to the EIR’s failure to disclose the
fact that a grocery store was a planned occupant of the Project. Petitioner’s members and/or
others further objected to the Project’s lack of consistency and compliance with General Plan
requirements governing approval of “Signature” projects. After closing the public hearing, a
majority of Planning Commissioners voted to recommend that the City Council certify the EIR
and grant the requested development approvals for the Project.
32. On June 21, 2022 the City Council held a public hearing on the EIR and Project.
Before and/or during the hearing, Petitioner’s members and others presented additional oral
and/or written testimony objecting to the proposed certification of the EIR and approval of the
Project, as well as to the Project’s lack of consistency and compliance with General Plan criteria
for “Signature” projects.
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33. At least one organization submitted expert opinion documenting that the air
quality and public health impacts from a Whole Foods grocery store will far exceed the impacts
disclosed and evaluated in the draft and final EIR, which assumed only generic, non-grocery
commercial uses. The opinion documented that a grocery use will generate substantial emissions
of diesel exhaust, a known carcinogen and toxic air contaminant, from multiple daily refrigerated
truck deliveries in close to proximity to existing and future residential “sensitive receptors,” and
that the consequent health risk will exceed cumulative significance thresholds established by the
Bay Area Air Quality Management District (“(BAAQMD”). This is a significant environmental
impact that the final EIR failed to disclose, evaluate, or mitigate
34. After closing the public hearing, the City Council voted to certify the final EIR
and grant the Rezoning, Planned Development Permit, tree removal, Conditional Use Permit,
and Determination of Public Convenience and Necessity for the Project.
35. On June 23, 2022 the City posted a Notice of Determination with the Santa Clara
County Clerk in accordance with CEQA in accordance with Public Resources Code section
21152.
FIRST CLAIM FOR RELIEF
(Violation of CEQA )
36. Petitioner here incorporates by reference all preceding paragraphs in their entirety.
37. At all times relevant to this action the City was the “Lead Agency” responsible for
the review and approval of the Project under Public Resources Code section 21067.
38. CEQA requires public agencies to first identify the environmental effects of a
project or program, and then to mitigate those adverse environmental effects through the
imposition of feasible mitigation measures or the analysis and selection of feasible alternatives.
Pub. Resources Code § 21002. CEQA requires a lead agency to establish that either: (1) impacts
will not have a significant effect on the environment or (2) the agency has adopted findings that
all significant environmental effects have been avoided or mitigated to the extent feasible, and
any remaining effects found to be unavoidable ate acceptable due to specific overriding
economic, social, technological, or other benefits.
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39. An EIR must include a finite, stable, accurate and meaningful project description.
14 C.C.R. § 15124. The project description must contain sufficient specific information about
the project to allow a complete evaluation and review of its environmental impacts.
40. An EIR must include a description of the physical environmental conditions in
the vicinity of the project as they existed at the time the notice of preparation is published, with
particular focus on the regional setting. 14 C.C.R. § 15125. An EIR must identify and evaluate
the direct, indirect, and cumulative environmental impacts of all phases of a project. 14 C.C.R. §
15126. The discussion must include relevant specifics of the area, the resources involved,
physical changes, alterations to ecological systems, and changes induced in population
distribution, population concentration, the human use of the land (including commercial and
residential development), health and safety problems caused by the physical changes, and other
aspects of the resource base such as water, historical resources, scenic quality, and public
services. 14 C.C.R. § 15126.2.
41. A lead agency must describe and evaluate feasible measures for minimizing or
avoiding a project’s direct, indirect, and cumulative impacts on the environment. Pub. Resources
Code § 21100(b)(3); 14 C.C.R. § 15126.4. A lead agency may not improperly defer the
formulation of mitigation measures until a future time. 14 C.C.R. § 15126.4.
42. A lead agency must identify all significant effects on the environment caused by a
proposed project that cannot be avoided. Pub. Resources Code, § 21100(b)(2)(A). A lead agency
must also provide information in the record to justify rejecting mitigation measures as infeasible
based on economic, social, or housing reasons. 14 C.C.R. § 15131(¢).
43. An EIR must describe a range of reasonable alternatives to the project, or to the
location of the project, that would feasibly attain most of the basic objectives of the project but
would avoid or substantially lessen any of the significant effects of the project, and must
evaluate the comparative merits of the alternatives. 14 C.C.R. § 15126.6. An EIR must also
include sufficient information about each alternative to allow meaningful evaluation, analysis,
and comparison with the proposed project. Id.
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44. An EIR is required to contain a statement briefly indicating the reasons for
determining that various effects on the environment were not significant and consequently were
not discussed in detail in the EIR. Pub. Resources Code § 21100(c).
45. A lead agency must provide good faith, reasoned analysis in response to
comments on a draft EIR. 14 C.C.R. § 15088(c). The Final EIR must address recommendations
and objections raised in comments in detail, giving reasons why they were not accepted. Id.
Specific responses are required to comments raising specific questions about significant issues.
46. A lead agency may not approve a project for which an EIR identifies a significant
environmental impact unless the impact has been mitigated or avoided by changes in the
project, or unless the agency specifically finds that overriding benefits outweigh the significant
effects on the environment. Pub. Resources Code § 21081.
Inaccurate and Unstable Project Description
47. An EIR’s project description must contain sufficient specific information about
the project to allow a complete evaluation and review of its environmental impacts. Courts have
held that “an accurate, stable, and finite project description is the indispensable prerequisite to
an informative and legally sufficient EIR.” County of Inyo v. City of Los Angeles (1977) 71
Cal.App.3d 185.
48. The EIR for this Project fails to describe the Project accurately or in in sufficient
detail. The EIR omits integral components of the Project and as a result fails to disclose all
Project impacts, thereby thwarting CEQA's objective of furthering public disclosure and
informed environmental decision.
Inadequate Analysis and Mitigation of Significant Impacts
49. The EIR for this Project fails to adequately disclose and/or evaluate all of the
Project’s significant direct, indirect, and cumulative impacts, including impacts on: aesthetics,
agricultural resources, ait quality, human health, global climate change, biological resources,
geology and soils, hazards and hazardous materials, hydrology and water quality, land use and
planning, mineral resources, noise, population and housing, public services, recreation,
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transportation and traffic, utilities, and urban decay, in violation of the information disclosure
provisions of CEQA.
50. The City therefore prejudicially abused its discretion in certifying the EIR by
failing to proceed in the manner required by CEQA, and by adopting findings that are not
supported by substantial evidence in the record.
Failure To Require All Feasible Mitigation Measures
Sie An EIR must describe, evaluate, and require feasible measures for minimizing or
avoiding a project’s direct, indirect, and cumulative impacts on the environment. 14 C.C.R. §
15126.4.
52. The EIR for this Project fails to describe, evaluate, and require all reasonable,
feasible mitigation measures for the Project’s direct, indirect, and cumulative impacts, including
impacts on air quality, human health, global climate change, noise, transportation and traffic,
and urban decay.
53. The City therefore prejudicially abused its discretion in certifying the EIR by
failing to proceed in the manner required by CEQA, and by adopting findings that are not
supported by substantial evidence in the record.
Failure To Respond Adequately To Comments On Draft EIR
54. A lead agency must evaluate comments on environmental issues received from
persons who reviewed a Draft EIR during the public comment period, and must prepare a
written response. 14 C.C.R. § 15088(a). The written response must describe the disposition of
significant environmental issues raised. Id. at subd. (c). In particular, the major environmental
issues raised when the lead agency’s position is at variance with recommendations and
objections raised in the comments must be addressed in detail, giving reasons why specific
comments and suggestions were not accepted. Id. There must be good faith, reasoned analysis in
response; conclusory statements unsupported by factual information will not suffice. Id.
55. ‘The City here failed to provide a detailed, written, good faith, reasoned analysis in
response to comments received on the Draft and Recirculated EIR during the public comment
period from individuals and responsible agencies, and failed to give adequate reasons why
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specific comments and suggestions were not accepted. Instead, the City merely gave conclusory
statements unsupported by factual information.
56. The City therefore prejudicially abused its discretion in certifying the EIR by
failing to proceed in the manner required by CEQA.
SECOND CLAIM FOR RELIEF
(Violation of State Planning & Zoning Law)
57. Petitioner here incorporates by reference all preceding paragraphs in their entirety.
58. Under the State Planning and Zoning law, Government Code §§ 65000 ef seq., a
local public agency may entitle a proposed land use only if the land use is consistent with the
goals, policies, and objectives contained in a valid, current, internally consistent General Plan,
including any applicable subsidiary specific plans and/or planned unit development approvals.
59. The Project is subject to the goals, policies, and objectives of the City’s General
Plan, including with Policy IP-5.10 governing development of “Signature” projects.
60. The Project as approved is inconsistent and incompatible with the density and
height criteria applicable to “Signature” projects as provided in the General Plan.
61. ‘The City therefore prejudicially abused its discretion by approving the Project
notwithstanding these inconsistencies and incompatibilities, and by adopting findings of General
Plan consistency that are clearly erroneous and not supported by substantial evidence.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
62. This action is brought consistent with the requirements of Code of Civil
Procedure section 1094.5 and Public Resources Code sections 21168 and 21177. Petitioner
and/or its constituent members objected to the City’s approval of the Project orally and/or in
writing prior to the close of the final public hearing on the Project. Petitioner and/or other
organizations and individuals raised or affirmed each of the legal claims asserted in this petition
orally or in writing prior to the close of the final public hearing on the Project.
INADEQUATE REMEDY AT LAW
63. Petitioner declares that it has no plain, speedy, and adequate remedy in the
ordinary course of law for the improper action of the City.
» | PETITION FOR WRIT OF MANDATE
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NEWLY PRODUCED EVIDENCE
64. In accordance with Code of Civil Procedure section 1094.5(e), Petitioner may,
prior to or during the hearing on this petition, offer additional relevant evidence that could not,
in the exercise of reasonable diligence, have been produced at the administrative hearing.
ATTORNEYS FEES
65. Petitioner is entitled to recover attorneys’ fees as provided under Code of Civil
Procedure section 1021.5 if it prevails in this action and the Court finds that a significant benefit
has been conferred on the general public or a latge class of persons, and that the necessity and
burden of private enforcement is such as to make an award of fees appropriate.
PRAYER
WHEREFORE, Petitioner prays for entry of judgment as follows:
1. For a peremptory writ of mandate directing the City:
(a) to set aside its actions taken June 21, 2022 certifying the final EIR and granting a
Rezoning, Planned Development Permit, tree removal, Conditional Use Permit, and
Determination of Public Convenience and Necessity for the Project; and
(b) to comply fully with CEQA and the State Planning & Zoning Law in any
subsequent action to approve the Project;
2. For an order staying the effect of the City’s actions pending the outcome of this
proceeding.
3. For a preliminary and permanent injunction directing the City and Real Parties to
cease and refrain from engaging in any future actions predicated upon the approval actions
challenged herein until the City comes into compliance with applicable law.
4. For costs of suit.
5. For an award of attorneys’ fees.
6. For other legal or equitable relief that the court deems just and proper.
//1
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/
PETITION FOR WRIT OF MANDATE
Citizens for Inclusive Development v. City of San José
Case No.
515Dated: July 22, 2022 M. R. WOLFE AND ASSOCIATES, P.C
By:
ark R. Wolfe
John H. Farrow
Attorneys for Petitioner
CITIZENS FOR INCLUSIVE DEVELOPMENT
PETITION FOR WRIT OF MANDATE
Citizens for Inclusive Development v. City of San José
Case No.
also_
VERIFICATION
I, GARY CUNNINGHAM, declare as follows:
I am a member of Citizens for Inclusive Development, the Petitioner in the above-
captioned action, and am authorized to make this verification on its behalf.
I have read the foregoing PETTTION FOR WRIT OF MANDATE and know the
contents thereof. The statements made therein are true of my own knowledge, except as to those
matters which are alleged on information and belief, and as to those matters I believe them to be
Co eT nN DH &— WB NY
true.
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I affirm, under penalty of perjury, that the foregoing is true and correct.
Dated: 7 {J 2 L 2739 By: : 7
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Ocean eee seine | PETITION FOR WRIT OF MANDATE
So Franca CA 2416 | Citizens for Inclusive Development v. City of San José
mewolfeassociates.com Case No.
-13-
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1M. R, Wolfe & Associ 94104 28 22CV401205 Santa Clara — Civil Mark R. Wolfe, CSB No. 176753 John H. Farrow, CSB No. 209221 M. R. WOLFE & ASSOCIATES, P.C. 580 California Street, Suite 1200 San Francisco, CA 94104 Telephone: (415) 369-9400 Fax: (415) 369-9405 mrw@mrwolfeassociates.com Attorney for Petitioner THE SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CITIZENS FOR INCLUSIVE DEVELOPMENT, an unincorporated association, Petitioner, Vs. CITY OF SAN JOSE, Respondent; EL PASEO PROPERTY OWNER, LLC; SAND HILL PROPERTY, LLC; ALLISON KOO; and DOES 1 through 25, inclusive; Real Parties in Interest. Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/22/2022 9:44 AM Reviewed By: L. Quach-Marcella Case #22CV401205 Envelope: 9521943 22C0V401205 Case No.: PETITION FOR WRIT OF MANDATE ACTION BASED ON CALIFORNIA ENVIRONMENTAL QUALITY ACT (Code Civ. Proc. §1094.5; Pub. Res. Code §§ 21168; 21168.5 et seq.) PETITION FOR WRIT OF MANDATE, Citizens for Inchisive Development v. City of San José Case No. na10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCTION 1. With this lawsuit, Petitioner CITIZENS FOR INCLUSIVE DEVELOPMENT (“Petitioner”), challenges the June 21, 2022 final actions by Respondent CITY OF SAN JOSE (“City”) certifying an environmental impact report (“EIR”) pursuant to the California Environmental Quality Act (“CEQA”), Pub. Resources Code § 21000 et seq., and approving a Planned Development Zoning, a subdivision, Planned Development Permit, Development Agreement, Conditional Use Permit, Determination of Public Convenience & Necessity to allow off-sale alcohol, and tree removal permits for the El Paseo & 1777 Saratoga Avenue Mixed-Use Project (“Project”), a proposed mixed commercial and residential development on a 10.76- acre site located at the intersection El Paseo de Saratoga and Saratoga Avenue in the City. The Project’s owners and proponents ate Real Parties In Interest EL PASEO PROPERTY OWNER, LLC, SAND HILL PROPERTY, LLC, and ALLISON KOO (together “Real Parties”). 2. Petitioner contends the City’s approval actions violated CEQA. As certified by the City, the Project’s EIR fails to include an accurate project description, and fails to adequately identify, evaluate, and/or require mitigation for all significant direct and cumulative environmental impacts the Project will cause. As a result, there is no substantial evidence in the administrative record to support the City’s findings that the Project’s environmental impacts will be less than significant after mitigation. Instead, substantial evidence shows the Project will have several significant unmitigated environmental effects that the EIR either failed to identify, failed to evaluate adequately, or failed to mitigate where feasible. 3. Petitioner further contends that the City violated the State Planning and Zoning Law, Gov’t Code § 65000 ef seq., by approving the Project notwithstanding material inconsistencies and incompatibilities with the goals, policies, and standards set forth in the City’s General Plan. 4. Petitioner accordingly seeks a peremptory writ of mandate under Code of Civil Procedure section 1094.5 and Public Resources Code section 21168 commanding the City to set aside its approvals, and to reconsider its actions after fully complying CEQA. Petitioner further » | PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1M. R, Wolfe & Associates, PC 580 California Street, Ste 1200 San Francisco, CA. 94104 (415) 369-400 mawolfeassociates.com seeks a stay of the effect of the City’s actions during the pendency of these proceedings. Finally, Petitioner seeks an award of costs and reasonable attorneys’ fees under Code of Civil Procedure section 1021.5, together with any other relief the Court deems necessary and proper. 5. In support whereof, Petitioner alleges: PARTIES Citizens for Inclusive Development 6. Petitioner Citizens for Inclusive Development is an unincorporated association of residents, citizens, property owners, taxpayers and electors residing in the City of San José. Its organizational purpose includes advocating for just, equitable and responsible land use planning and policy, as well as diligent enforcement of planning and environmental laws in San José. a Petitioner’s membership includes but is not limited to San José residents Gary Cunningham, Luann Abrahams, and David Abrahams, all of whom objected to the City’s approvals of the Project orally and/or in writing prior to the close of the final public hearing on the Project before the San José City Council. 8. Petitioner’s members maintain a direct and regular geographic nexus with the City of San José and will suffer direct harm from any adverse environmental and/or public health impacts caused by the Project. 9. Petitioner’s members have a clear and present tight to, and beneficial interest in, the City’s performance of its duties to comply with CEQA. As San José citizens, property owners, taxpayers, workers, and/or electors, Petitioner’s members ate within the class of persons to whom the City owes such duties. 10. By this action, Petitioner seeks to protect the interests of its members and to enforce a public duty owed to them by the City. Because the claims asserted and the relief sought in this petition are broad-based and of a public as opposed to a purely private or pecuniary natute, direct participation in this litigation by Petitioner’s individual members is not necessary. 11. Petitioner and/or its individual members presented oral and/or written comments in opposition to the Project prior to and/or during the public hearings culminating in the City’s March 15, 2022 actions approving the Project, and raised or supported all objections PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1M. R, Wolfe & Associates, PC 580 California Street, Ste 1200 San Francisco, CA. 94104 (415) 369-400 mawolfeassociates.com to the Project and alleged grounds for noncompliance with CEQA and other applicable law presented herein. City of San José 12. Respondent CITY OF SAN JOSE is a California Charter City situated in Santa Clara County. On June 21, 2022 the City, acting through its City Council: (1) adopted a resolution certifying the “El Paseo and 1777 Saratoga Avenue Mixed-Use Village Project Environmental Impact Report,” and making certain findings concerning significant impacts, mitigation measures, and a related Mitigation Monitoring and Reporting Plan for the Project; (2)approved an Ordinance rezoning an approximately 10.76-gross acre site from the CG and CP Zoning Districts to a CG(PD) Planned Development Zoning District; and (3) adopted a resolution approving a Planned Development Permit, extended construction hours, and a Conditional Use Permit and Determination of Public Convenience or Necessity to allow off-sale alcohol at a planned grocery store within the Project. 13. At all times relevant, the City served as the “lead agency” under CEQA responsible for evaluating the environmental impacts of the Project. El Paseo Property Owner, LLC 14. Petitioner is informed and believes that Real Party In Interest El Paseo Property Owner, LLC is a Delaware Limited Liability Company maintaining its principal place of business in Santa Clara County. Petitioner is informed and believes that El Paseo Property Owner, LLC is an ownet, sponsor, and/or proponent of the Project described, and is an applicant for and recipient of the land use entitlements and approvals described herein. 15. El Paseo Property Owner, LLC is identified as a “Project Applicant” on a notice of determination for the Project posted by the City in accordance with Public Resources Code section 21152 on June 23, 2022. Sand Hill Property, LLC 16. Petitioner is informed and believes that Real Party In Interest Sand Hill Property, LLC is a Delaware Limited Liability Company maintaining its principal place of business in Santa Clara County. Petitioner is informed and believes that Sand Hill Property, LLC is an PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1M. R, Wolfe & Associates, PC 580 California Street, Ste 1200 San Francisco, CA. 94104 (415) 369-400 mawolfeassociates.com owner, sponsor, and/or proponent of the Project described, and is an applicant for and recipient of the land use entitlements and approvals described herein. 17. Sand Hill Property, LLC is identified as a “Project Applicant” in the record of proceedings before City for the Project. Allison Koo 18. Petitioner is informed and believes that Real Party In Interest Allison Koo is an adult citizen domiciled in the State of California. Petitioner is further informed and believes that Allison Koo is an ownet, sponsor, and/or developer of the Project, and was an applicant for and recipient of the land use entitlements challenged herein. 19. Allison Koo is identified as a “Project Applicant” on a notice of determination for the Project posted by the City in accordance with Public Resources Code section 21152 on June 23, 2022. Real Parties In Interest Does 1 through 25, Inclusive 20. DOES 1 through 25 inclusive, are owners, sponsors, developers, applicants for, and/or recipients of the land use entitlements challenged herein, whose identities are unknown to Petitioner. Petitioner therefore names them by such fictitious names. Petitioner will seek leave from the court to amend this petition to reflect the true names and capacities of DOES 1 through 25 inclusive if and when ascertained. URISDICTION & VENUE 21. This action is brought pursuant to the writ of mandate provisions of Code of Civil Procedure section 1094.5, and the judicial review provisions of Public Resources Code section 21168. Venue is proper in Santa Clara County under Code of Civil Procedure section 395. FACTUAL & PROCEDURAL BACKGROUND 22. The Project includes the demolition of approximately 126,345 square feet of existing commercial buildings and the removal of 120 trees to allow the construction of four mixed-use buildings consisting of 994 residential units and 165,949 square feet of commercial space, including approximately 40,000 square foot Whole Foods grocery store. PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1M. R, Wolfe & Associates, PC 580 California Street, Ste 1200 San Francisco, CA. 94104 (415) 369-400 mawolfeassociates.com 23. The project site is located within the Envision San José 2040 General Plan’s (General Plan) Paseo de Saratoga Urban Village growth area (Horizon 3).1 The Urban Village Plan for Paseo de Saratoga has not yet been adopted. The project proposes to develop the site as a “Signature” project, in conformance with General Plan Policy IP-5.10. General Plan Policy IP-5.10 allows residential mixed-use Signature projects to proceed within Urban Village areas prior to the preparation of an Urban Village Plan if they meet certain specified criteria. 24. On October 15, 2021 the City released a draft EIR for public review and comment. The draft EIR described the Project as the development of one of two development options: a “Non-Education Mixed Use Option” consisting of 1,100 residential units and 165,000 square feet of commercial space, and an “Education Mixed Use Option” consisting of 730 residential units, 66,000 square feet of commercial space, and a 450,000 square foot educational facility with dorm space. The draft EIR stated that the Non-Education Mixed Use Option was the preferred option. 25. The draft EIR described the commercial component of both options in generic terms only, providing no details as to what sort of commercial uses might eventually operate within the Project. In its analysis of the Project’s potential environmental impacts, including impacts on air quality, human health, noise, and traffic, the draft EIR assumed the commercial component was a generic, non-grocery use. The draft EIR nowhere disclosed that a Whole Foods grocery store was planned for approximately 40,000 square feet of ground floor commercial space, even though on September 23, 2021, approximately three weeks before the draft EIR was released, the City was in possession of a document titled “Whole Foods Market Operations Plan” that plainly depicted plans for a future Whole Foods grocery store within the Project. 26. The draft EIR purported to evaluate the Project’s consistency with the City’s General Plan, including with Policy IP-5.10 governing development of “Signature” projects, concluding the Project was consistent with all applicable provisions of the General Plan, including density and height criteria for Signature projects. PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1M. R, Wolfe & Associates, PC 580 California Street, Ste 1200 San Francisco, CA. 94104 (415) 369-400 mawolfeassociates.com 27. Various agencies, organizations, and individuals, including Petitioner’s members, submitted written comments during the public review period objecting to impact analysis in the draft EIR. 28. In January, 2022 various local news sources revealed that Whole Foods was the intended occupant of an approximately 43,000 square foot commercial space within the Project. 29. In May, 2022 the City released a “First Amendment to the Draft EIR” for the Project, which served as the final EIR for purposes of CEQA (“final EIR”). The final EIR purported to respond to all comments timely submitted on the draft EIR, and included various revisions to the text of the draft EIR. The final EIR nowhere disclosed that a Whole Foods grocery store was part of the Project and did not modify any of the draft EIRs analysis or conclusions with respect to environmental impacts from the Project’s commercial component. 30. On May 25, 2022 the City’s Planning Commission held a public hearing on the EIR and Project. A staff report prepared for this hearing confirmed that Whole Foods grocery store was planned for the Project, marking the first time the City disclosed this fact to the public. 31. Before and/or during the hearing, Petitioner’s members and others presented oral and/or written comments objecting to the Project, and/or to the EIR’s failure to disclose the fact that a grocery store was a planned occupant of the Project. Petitioner’s members and/or others further objected to the Project’s lack of consistency and compliance with General Plan requirements governing approval of “Signature” projects. After closing the public hearing, a majority of Planning Commissioners voted to recommend that the City Council certify the EIR and grant the requested development approvals for the Project. 32. On June 21, 2022 the City Council held a public hearing on the EIR and Project. Before and/or during the hearing, Petitioner’s members and others presented additional oral and/or written testimony objecting to the proposed certification of the EIR and approval of the Project, as well as to the Project’s lack of consistency and compliance with General Plan criteria for “Signature” projects. PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1M. R, Wolfe & Associates, PC 580 California Street, Ste 1200 San Francisco, CA. 94104 (415) 369-400 mawolfeassociates.com 33. At least one organization submitted expert opinion documenting that the air quality and public health impacts from a Whole Foods grocery store will far exceed the impacts disclosed and evaluated in the draft and final EIR, which assumed only generic, non-grocery commercial uses. The opinion documented that a grocery use will generate substantial emissions of diesel exhaust, a known carcinogen and toxic air contaminant, from multiple daily refrigerated truck deliveries in close to proximity to existing and future residential “sensitive receptors,” and that the consequent health risk will exceed cumulative significance thresholds established by the Bay Area Air Quality Management District (“(BAAQMD”). This is a significant environmental impact that the final EIR failed to disclose, evaluate, or mitigate 34. After closing the public hearing, the City Council voted to certify the final EIR and grant the Rezoning, Planned Development Permit, tree removal, Conditional Use Permit, and Determination of Public Convenience and Necessity for the Project. 35. On June 23, 2022 the City posted a Notice of Determination with the Santa Clara County Clerk in accordance with CEQA in accordance with Public Resources Code section 21152. FIRST CLAIM FOR RELIEF (Violation of CEQA ) 36. Petitioner here incorporates by reference all preceding paragraphs in their entirety. 37. At all times relevant to this action the City was the “Lead Agency” responsible for the review and approval of the Project under Public Resources Code section 21067. 38. CEQA requires public agencies to first identify the environmental effects of a project or program, and then to mitigate those adverse environmental effects through the imposition of feasible mitigation measures or the analysis and selection of feasible alternatives. Pub. Resources Code § 21002. CEQA requires a lead agency to establish that either: (1) impacts will not have a significant effect on the environment or (2) the agency has adopted findings that all significant environmental effects have been avoided or mitigated to the extent feasible, and any remaining effects found to be unavoidable ate acceptable due to specific overriding economic, social, technological, or other benefits. PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1M. R, Wolfe & Associates, PC 580 California Street, Ste 1200 San Francisco, CA. 94104 (415) 369-400 mawolfeassociates.com 39. An EIR must include a finite, stable, accurate and meaningful project description. 14 C.C.R. § 15124. The project description must contain sufficient specific information about the project to allow a complete evaluation and review of its environmental impacts. 40. An EIR must include a description of the physical environmental conditions in the vicinity of the project as they existed at the time the notice of preparation is published, with particular focus on the regional setting. 14 C.C.R. § 15125. An EIR must identify and evaluate the direct, indirect, and cumulative environmental impacts of all phases of a project. 14 C.C.R. § 15126. The discussion must include relevant specifics of the area, the resources involved, physical changes, alterations to ecological systems, and changes induced in population distribution, population concentration, the human use of the land (including commercial and residential development), health and safety problems caused by the physical changes, and other aspects of the resource base such as water, historical resources, scenic quality, and public services. 14 C.C.R. § 15126.2. 41. A lead agency must describe and evaluate feasible measures for minimizing or avoiding a project’s direct, indirect, and cumulative impacts on the environment. Pub. Resources Code § 21100(b)(3); 14 C.C.R. § 15126.4. A lead agency may not improperly defer the formulation of mitigation measures until a future time. 14 C.C.R. § 15126.4. 42. A lead agency must identify all significant effects on the environment caused by a proposed project that cannot be avoided. Pub. Resources Code, § 21100(b)(2)(A). A lead agency must also provide information in the record to justify rejecting mitigation measures as infeasible based on economic, social, or housing reasons. 14 C.C.R. § 15131(¢). 43. An EIR must describe a range of reasonable alternatives to the project, or to the location of the project, that would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and must evaluate the comparative merits of the alternatives. 14 C.C.R. § 15126.6. An EIR must also include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project. Id. PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1M. R, Wolfe & Associates, PC 580 California Street, Ste 1200 San Francisco, CA. 94104 (415) 369-400 mawolfeassociates.com 44. An EIR is required to contain a statement briefly indicating the reasons for determining that various effects on the environment were not significant and consequently were not discussed in detail in the EIR. Pub. Resources Code § 21100(c). 45. A lead agency must provide good faith, reasoned analysis in response to comments on a draft EIR. 14 C.C.R. § 15088(c). The Final EIR must address recommendations and objections raised in comments in detail, giving reasons why they were not accepted. Id. Specific responses are required to comments raising specific questions about significant issues. 46. A lead agency may not approve a project for which an EIR identifies a significant environmental impact unless the impact has been mitigated or avoided by changes in the project, or unless the agency specifically finds that overriding benefits outweigh the significant effects on the environment. Pub. Resources Code § 21081. Inaccurate and Unstable Project Description 47. An EIR’s project description must contain sufficient specific information about the project to allow a complete evaluation and review of its environmental impacts. Courts have held that “an accurate, stable, and finite project description is the indispensable prerequisite to an informative and legally sufficient EIR.” County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185. 48. The EIR for this Project fails to describe the Project accurately or in in sufficient detail. The EIR omits integral components of the Project and as a result fails to disclose all Project impacts, thereby thwarting CEQA's objective of furthering public disclosure and informed environmental decision. Inadequate Analysis and Mitigation of Significant Impacts 49. The EIR for this Project fails to adequately disclose and/or evaluate all of the Project’s significant direct, indirect, and cumulative impacts, including impacts on: aesthetics, agricultural resources, ait quality, human health, global climate change, biological resources, geology and soils, hazards and hazardous materials, hydrology and water quality, land use and planning, mineral resources, noise, population and housing, public services, recreation, PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1M. R, Wolfe & Associates, PC 580 California Street, Ste 1200 San Francisco, CA. 94104 (415) 369-400 mawolfeassociates.com transportation and traffic, utilities, and urban decay, in violation of the information disclosure provisions of CEQA. 50. The City therefore prejudicially abused its discretion in certifying the EIR by failing to proceed in the manner required by CEQA, and by adopting findings that are not supported by substantial evidence in the record. Failure To Require All Feasible Mitigation Measures Sie An EIR must describe, evaluate, and require feasible measures for minimizing or avoiding a project’s direct, indirect, and cumulative impacts on the environment. 14 C.C.R. § 15126.4. 52. The EIR for this Project fails to describe, evaluate, and require all reasonable, feasible mitigation measures for the Project’s direct, indirect, and cumulative impacts, including impacts on air quality, human health, global climate change, noise, transportation and traffic, and urban decay. 53. The City therefore prejudicially abused its discretion in certifying the EIR by failing to proceed in the manner required by CEQA, and by adopting findings that are not supported by substantial evidence in the record. Failure To Respond Adequately To Comments On Draft EIR 54. A lead agency must evaluate comments on environmental issues received from persons who reviewed a Draft EIR during the public comment period, and must prepare a written response. 14 C.C.R. § 15088(a). The written response must describe the disposition of significant environmental issues raised. Id. at subd. (c). In particular, the major environmental issues raised when the lead agency’s position is at variance with recommendations and objections raised in the comments must be addressed in detail, giving reasons why specific comments and suggestions were not accepted. Id. There must be good faith, reasoned analysis in response; conclusory statements unsupported by factual information will not suffice. Id. 55. ‘The City here failed to provide a detailed, written, good faith, reasoned analysis in response to comments received on the Draft and Recirculated EIR during the public comment period from individuals and responsible agencies, and failed to give adequate reasons why PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No. = OS10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specific comments and suggestions were not accepted. Instead, the City merely gave conclusory statements unsupported by factual information. 56. The City therefore prejudicially abused its discretion in certifying the EIR by failing to proceed in the manner required by CEQA. SECOND CLAIM FOR RELIEF (Violation of State Planning & Zoning Law) 57. Petitioner here incorporates by reference all preceding paragraphs in their entirety. 58. Under the State Planning and Zoning law, Government Code §§ 65000 ef seq., a local public agency may entitle a proposed land use only if the land use is consistent with the goals, policies, and objectives contained in a valid, current, internally consistent General Plan, including any applicable subsidiary specific plans and/or planned unit development approvals. 59. The Project is subject to the goals, policies, and objectives of the City’s General Plan, including with Policy IP-5.10 governing development of “Signature” projects. 60. The Project as approved is inconsistent and incompatible with the density and height criteria applicable to “Signature” projects as provided in the General Plan. 61. ‘The City therefore prejudicially abused its discretion by approving the Project notwithstanding these inconsistencies and incompatibilities, and by adopting findings of General Plan consistency that are clearly erroneous and not supported by substantial evidence. EXHAUSTION OF ADMINISTRATIVE REMEDIES 62. This action is brought consistent with the requirements of Code of Civil Procedure section 1094.5 and Public Resources Code sections 21168 and 21177. Petitioner and/or its constituent members objected to the City’s approval of the Project orally and/or in writing prior to the close of the final public hearing on the Project. Petitioner and/or other organizations and individuals raised or affirmed each of the legal claims asserted in this petition orally or in writing prior to the close of the final public hearing on the Project. INADEQUATE REMEDY AT LAW 63. Petitioner declares that it has no plain, speedy, and adequate remedy in the ordinary course of law for the improper action of the City. » | PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No. = ll10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1M. R, Wolfe & Associates, PC 580 California Street, Ste 1200 San Francisco, CA. 94104 (415) 369-400 mawolfeassociates.com NEWLY PRODUCED EVIDENCE 64. In accordance with Code of Civil Procedure section 1094.5(e), Petitioner may, prior to or during the hearing on this petition, offer additional relevant evidence that could not, in the exercise of reasonable diligence, have been produced at the administrative hearing. ATTORNEYS FEES 65. Petitioner is entitled to recover attorneys’ fees as provided under Code of Civil Procedure section 1021.5 if it prevails in this action and the Court finds that a significant benefit has been conferred on the general public or a latge class of persons, and that the necessity and burden of private enforcement is such as to make an award of fees appropriate. PRAYER WHEREFORE, Petitioner prays for entry of judgment as follows: 1. For a peremptory writ of mandate directing the City: (a) to set aside its actions taken June 21, 2022 certifying the final EIR and granting a Rezoning, Planned Development Permit, tree removal, Conditional Use Permit, and Determination of Public Convenience and Necessity for the Project; and (b) to comply fully with CEQA and the State Planning & Zoning Law in any subsequent action to approve the Project; 2. For an order staying the effect of the City’s actions pending the outcome of this proceeding. 3. For a preliminary and permanent injunction directing the City and Real Parties to cease and refrain from engaging in any future actions predicated upon the approval actions challenged herein until the City comes into compliance with applicable law. 4. For costs of suit. 5. For an award of attorneys’ fees. 6. For other legal or equitable relief that the court deems just and proper. //1 // / PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No. 515Dated: July 22, 2022 M. R. WOLFE AND ASSOCIATES, P.C By: ark R. Wolfe John H. Farrow Attorneys for Petitioner CITIZENS FOR INCLUSIVE DEVELOPMENT PETITION FOR WRIT OF MANDATE Citizens for Inclusive Development v. City of San José Case No. also_ VERIFICATION I, GARY CUNNINGHAM, declare as follows: I am a member of Citizens for Inclusive Development, the Petitioner in the above- captioned action, and am authorized to make this verification on its behalf. I have read the foregoing PETTTION FOR WRIT OF MANDATE and know the contents thereof. The statements made therein are true of my own knowledge, except as to those matters which are alleged on information and belief, and as to those matters I believe them to be Co eT nN DH &— WB NY true. > Oo I affirm, under penalty of perjury, that the foregoing is true and correct. Dated: 7 {J 2 L 2739 By: : 7 Gar®@ainningham RN NY NY YN NK NK KY Ff SP FP FP Fe BB BP we CIA A FO NH fF SO weAN DH FW N = Ocean eee seine | PETITION FOR WRIT OF MANDATE So Franca CA 2416 | Citizens for Inclusive Development v. City of San José mewolfeassociates.com Case No. -13-