CALIFORNIA COURT OF APPEAL FIRST APPELLATE DISTRICT

Transcription

1 Case No. A CALIFORNIA COURT OF APPEAL FIRST APPELLATE DISTRICT TOWN OF DANVILLE, et al. Defendants/AppeJiants/Cross-RespoBdcnts SUMMERHILL HOMES, LLC, et al. Real Parties in lnterest/appe11ants/cross-respondents v. SOS -DANVILLE GROUP, Plzintiff/Respondent/Cross-AppeiJ::tnt Appeals and Cross-Appeal from the Superior Court of California County of Contra Costa Honorable Steven K. Austin Case No. MSN APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF AMICUS CURIAE BIKE EAST BAY AND CALIFORNIA BICYCLE COALITION IN SUPPORT OF SOS - DANVILLE GROUP Donald B. Mooney (SBN ) Law Office of Donald B. Mooney 129 C Street, Suite 2 Davis, CA Telephone: Facsimile: Attorney for Amicus Curiae _ Bike East Bay and California Bicycle Coalition

2 TABLE OF CONTENTS TABLE OF AUTHORITIES APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF AMICUS CURIAE BIKE EAST BAY AND CALIFORNIA BICYCLE COALITION IN SUPPORT OF SOS - DANVILLE GROUP AMICUS CURIAE BIKE EAST BAY AND CALIFORNIA BICYCLE COALITION IN SUPPORT OF SOS - DANVILLE GROUP INTRODUCTION LEGAL DISCUSSION A. Bicycle Safety Constitutes an Environmental Impact Under CEQA B. CEQA's Informational Requirements Require Disclosure Of Impacts To Bicycle Safety... 8 CONCLUSION I 0 CERTIFICATE OF WORD COUNT

3 TABLE OF AUTHORITIES Cases Page(s) Bozung v. Local Agency Formation Commission ( 1975) 13 Cal.3d Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d Laurel Heights Improvement Ass'n.v. Regents of the University of California ("Laurel Heights!") (1988) 47 Cal.3d Laurel Heights Improvement Ass'n v. Regents of the Univ. of Cal. (1993) 6 Cal.4'h Mountain Lion Foundation. v. Fish & Game Com. (1997) 16 Cal. 4th No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d , 8 Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cai.App.4'h Planning and Conservation League v. Department of Water Resources (2000) 83 Cai.App.4'h Sierra Club v. State Board of Forestry (1994) 7 Cal.4'h AMICUS BRIEF ii

4 Codes and Statutes California Rules of Court Rule 8.200(c) Public Resources Code lOO I(a) , (a) , , (b)(3) , (a)... 7 Streets and Highway Codes Vehicle Code ' ' ' ' 10 Title 14 California Code of Regulation ("CEQA Guidelines") 15002(a)(l) l5002(a)(4) (a)(4) , 7, 9, (e) (b)... 5 AMICUS BRIEF iii

5 APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF AMICUS CURIAE BIKE EAST BAY AND CALIFORNIA BICYCLE COALITION IN SUPPORT OF SOS - DANVILLE GROUP Bike East Bay and California Bicycle Coalition apply for leave to file the accompanying amicus brief in support of SOS- Danville Group pursuant to rule 8.200(c) of the California Rules of Court. Bike East Bay and California Bicycle Coalition are familiar with the content of the parties' briefs. Bike East Bay and California Bicycle Coalition share the common goals of promoting and advocating for safe, convenient and enjoyable bicycling for all people in the East Bay, including the geographical area of the project at issue in this appeal. Bike East Bay and California Bicycle Coalition work to improve access to biking and bicycle safety for all residents of the East Bay, as well as throughout the State of California. Additionally, they work to facilitate the plannii1g and construction of networks of streets and paths that are safe for all kinds of bicycling, from experienced riders to the inexperienced children. They share the common goals to increase bicycling, to improve the health and quality of life of all residents, reduce environmental impacts and make the East Bay's streets and communities vibrant places to live, work and play. Bike East Bay and California Bicycle Coalition seek to file this brief out of their concern regarding Summerhill Home's argument that the California Environmental Quality Act ("CEQA"), Public Resources Code section et seq., does not require that a public agency address and analyze a project's potentially significant impacts to bicycle safety.

6 Bike East Bay and California Bicycle Coalition have no interest in or connection with any of the parties in this case. The proposed amicus brief was prepared in its entirety by the undersigned counsel for Bike East Bay and California Bicycle Coalition and funded in its entirety by those organizations. Bike East Bay and California Bicycle Coalition believe that their view regarding the application of bicycle safety to environmental review under CEQA will assist the court in resolving this case by demonstrating the application of CEQA to bicycle safety as well as the various policies and programs implemented by the Legislature and state atld lo al agencies to encourage and improve bicycle safety throughout California. Dated: March 9, 2015 Respectfully submitted, Law Office of Donald B. Mooney By:~~~~~~~~~~ Donald B. Mooney Attorney for Bike East and California Bicycle Coalition AMICUS BRIEF 2

7 BRIEF OF AMICUS CURIAE BIKE EAST BAY AND CALIFORNIA BICYCLE COALITION IN SUPPORT OF SOS - DANVILLE GROUP INTRODUCTION Bicycling in California, both recreational and commuter, has been on the rise, nearly doubling from 2000 to 2012 according to the California Household Transportation Survey. 1 This is in part due to a change in strategy and philosophy regarding California's transportation system. With advocacy for a healthier population and a cleaner environment, public agencies are planning for safe multi-modal travel as part of the California's transportation infrastructure. This is in part due to improved roadway and bikeway planning, design, operations, and connectivity that enhances bicycling safety and mobility to all destinations. With this increase in bicycling comes the need for improving bicycle safety. The Legislature, California Department of Transportation ("Cal trans"), and local jurisdictions have had recent philosophical changes with goals of promoting more bicycle travel, along with bicycle safety. This is evident from the development of Bicycle Transportation Plans (Streets & Highways Code, 891.2), the Complete Streets requirement imposed by the Metropolitan Transportation Commission with its Resolution and by the state Legislature in AB 1398 in 2008; and the CEQA exemption for Bicycle Transportation Plans and for restriping of streets and highways in 1 See 2 See AMICUS BRIEF 3

8 urbanized areas consistent with an adopted Bicycle Transportation Plan, provided bicycle safety impacts are mitigated. (See Pub. Resources Code, , ) Additionally, through Assembly Concurrent Resolution No. 211 (May 16, 2002), the Legislature has encouraged all cities and counties to implement policies that improve bicycle and pedestrian safety and to integrate bicycling and walking when building their transportation infrastructure. Thus, the trend in California has been to encourage and promote bicycle travel by improving bicycling opportunities and safety throughout the California transportation system. In the present case, Diablo Road is a narrow winding road, which means it is not wide enough for two cars and one bike, that moment when a bicyclist gets passed from behind and there is an on-coming car. Either the bicyclist gets sideswiped, or one of the two cars needs to slow clown to make sure there are not two cars and bike at the same point on the road. The stretch of road that is 1.4 miles long, which means that a bicyclist going I Omph would take about 6-8 minutes to get through, and would be passed by around 20 additional cars (109 peak hour trips generated by the project, divided by the six minutes a slower traveling bicyclist would take to get through). This is what the Town failed to discuss and analyze - how often additional cars will create a three person converge, and what type of signage, stenciling, pullouts might mitigate the potentially significant impacts to bicycle safety. AMICUS BRIEF

9 LEGAL DISCUSSION A. BICYCLE SAFETY CONSTITUTES AN ENVIRONMENTAL IMPACT UNDERCEQA In direct contradiction of the goals and policies established by the Legislature, and implemented by Caltrans and other local jurisdictions, Summerhill Homes argues that "fals a threshold matter, bicycle safety is not, per se, an environmental impact that needs to be considered at all under CEQA." (Appellants' Opening Brief ("AOB") at p ) To this end, the Summerhill Homes relies upon the Environmental Checklist in Appendix G, which assesses significance by evaluating whether there is any conflict with adopted policies, plans or programs regarding public transit, bicycle or pedestrian facilities, or otherwise decrease the pe1formance or safety of such facilities. (!d.; Appendix G, XVI(f).) Contrary to Summerhills Homes' argument, bicycle safety constitutes an important environmental impact that CEQA requires be discussed and analyzed. (Pub. Resources Code, 21083(b)(3).) CEQA specifically requires an agency to review whether the environmental effects of a project will cause substantial adverse effects on human beings either directly or indirectly. (!d.) Thus,"[ w ]hile effects analyzed under CEQA must be related to a physical change" (CEQA Guidelines, 15358, subcl. (b)), such a change may be deemed significant based solely on its impact on people." (Parker Shattuck Neighbors v. Berkeley City Council (20 13) 222 Cai.App , 779; citing CEQA Guidelines, 15065(a)(4).) If substantial evidence in the record supports a fair argument that a AMICUS BRIEF 5

10 project may have significant impacts on bicycle safety, then the lead agency's environmental document must address and analyze the potentially significant impact. (See Laurel Heights Improvement Ass'n v. Regents of the U1dv. of Cal. (1993) 6 Cal.4'h 1112, 1123; No Oil, Inc. v. City of Los Angeles, (1974) 13 Cal.3d 68, 82, 118.) Moreover, if the impact is potentially significant then the EIR must identify feasible mitigation measures that avoid or substantially reduce the project's impacts to environmental impacts. (Pub. Resources Code, 21002, (a), ) Summerhill Homes' argument assumes that when a project impacts bicycle safety on a roadway without a bicycle path or bike Jane CEQA does not require the agency to evaluate those potentially significant impacts. Nothing in CEQA limits bicycling safety to bicycling on bike paths or in designated bike lanes. In fact, the California Streets and Highways Code specifically describes a bicycle facility- a "class 3 bikeway" -- as a shared road without bike lanes. (Streets & Highway Code, ) Commonly throughout the state people use such roads as important bike facilities. Publicly available maps, such as Google's bike map layer, indicate the class 3 routes that are most suitable for bicycle travel _3 In the vicinity of this project, Diablo Road and a connected set of street segments include Calle Arroyo, Alameda Diablo and Calle Los Callados are indicated as important bike facilities without bike lanes or bike paths. (See 4 AR 01521; see also bttps:// 1 See AMICUS BRIEF 6

11 CEQA provides for lead agencies to consult with transportation planning agencies and public agencies which have transportation facilities within their jurisdiction which could be affected by a project. (Pub. Resources Code (a); CEQA Guidelines, 15072(e).) CEQA further defines transportation facilities to include "major local arterials" within five miles Qf the site. (Pub. Resources Code, (b); CEQA Guidelines, 15072(e).) The use of "major local.uterials" is not limited to cars and trucks. Unless otherwise specified for a particular roadway, bicyclists have the same rights to use the, oadway as motor vehicle drivers. (See Vehicle Code, 21200; '21202; 530.) Moreover, the Legislature recently stated the importance of bicycle safety on the state's roadways through the enactment of AB I 371, also known as the "Three Feet for Safety Act." AB 1371 requires motorists to maintain a safe distance so as to not intetfere with the safe operation of the bicycle and that the motor vehicle maintain a 3 foot distance from any part ofthe bicycle or its operator. (Vehicle Code, ' ) The "three feet" safety law applies to the use of all roadways. (!d.) To argue that bicycle safety is not a per se environmental impact that not be addressed ignores the direct and indirect impact that reduced bicycle safety has on humans. (See Pub. Resources Code, 21083(b)(3); CEQA Guidelines, 15065(a)(4).) Moreover, Summerhills Home's arguments ignores the Legislature's and state and local agencies' continuing efforts to improve bicycle safety on all of the State's streets and roadways. AMICUS BRIEF 7

12 B. CEQA's INFORMATIONAL REQUIREMENTS REQUIRE DISCLOSURE OF BICYCLE SAFETY When an EIR fails to address potentially significant impacts to the population regarding bike safety, the environmental document fails as an information document. An EIR serves as an informational document for decisionmakers as well as the public. "The environmental impact report, with all its specificity and complexity, is the mechanism prescribed by CEQA to force informed decision making and to expose ~he decision-making process to public scrutiny. (Planning and Conservation League v. Department of Water Resources (2000) 83 Cal.App.4' , 910; citing No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 86.) This interpretation remains the benchmark for judicial interpretation of CEQA. (Laurel Heights Improvement Association v. Regents of the University of California ( "Laurel Heights!") (1988) 47 Cal. 3d 376, 390, quoting Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 274.) As the Laurel Heights I court noted, "fijt is, of course, too late to argue for a grudging, miserly reading of CEQA." (Laurel Heights 1, supra, 47 Cal.3d at p. 390.) The EIR is the "primary means" of ensuring that public agencies "take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state." (!d. at p. 392, quoting Pub. Resources Code, 21 OOl(a).) The EIR is also a document of accountability as it demonstrates to an apprehensive citizenry that the agency has, in fact, analyzed and considered the environmental implications of its actions. (Laurel Heights 1, supra, 47 Cal.3d at p. 392.) Thus, "ltjhe EIR process protects not only the environment but AMICUS BRIEF 8

13 also informed self-government." (Ibid.) As its central purpose, an EJR must identify the significant environmental effects of the proposed project, and to identify ways of avoiding or minimizing those effects through the imposition of feasible mitigation measures or the selection of feasible alternatives. (Pub. Resources Code, 21002, l(a), ) "An EIR provides the public and responsible government agencies with detailed information on the potential environmental consequences of an agency's proposed decision." (Mountain Lion Foundation v. Fish & Game Commission (1997) 16 Cal.4th 105, 113.) Thus, the primary purposes of CEQA is to inform government decision-makers and the public about the potential significant environmental effects of proposed projects (CEQA Guidelines, 15002(a)(l)) and to disclose to the public the reasons for approval of a project that may have significant environmental effects, including direct and indirect impacts to humans. (CEQA Guidelines, l5002(a)(4); 15065(a)(4).) Informed decision making and public participation are fundamental cornerstones of the CEQA process. (See Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553; Laurel Heights/, supra, 47 Cal.3d 376.) With this primary purpose of CEQA in mind, the California Supreme Court has stated that "[t]he environmental impact report ("EIR") is the primary means of achieving the Legislature's considered declaration that it is the policy of this State to take all action necessary to protect, rehabilitate, and enhance the environmental quality of the State." (Sierra Club v. State Board of Forestry (1994) 7 Cal , 1229 [emphasis added].) Considering AMICUS BRIEF 9

14 t.his with the requirement to evaluate the direct and indirect impacts to humans, along with the Legislature's and Caltrans stated efforts to improve bicycle safety, it becomes apparent that for an EJR to meet its obligation as an informational document, it must discuss and analyze the Project's potentially significant impacts. Thus, if a project may have a significant impact on bicycle safety, then the public, through the environmental review process, has a right to be informed of that potential impact. Moreover, the decisionmakers, in considering and evaluating a project should also have that information, just as they would want to know if a project was going to create dangerous traffic conditions for motorized vehicles or aggravate an existing safety problem. As bicyclists have the same rights and obligations as motorized vehicles (Vehicle Code, 21200, 21202, 530), potentially significant impacts to bicycle safety must also be addressed. Finally, as discussed in SOS-DanviJie Group's Opening Brief, the administrative record indicates that the Town failed to consider and evaluate the Project's impact on bicycle safety on Diablo Road by the increase traffic resulting from the Project. (AOB at pp ) This failure constitutes violates CEQA's protection of human beings affected by the Project. (See CEQA Guidelines, 15065(a)(4).) CONCLUSION Based upon the foregoing, Bike East Bay and California Bicycle Coalition respectfully request that this Court affirm the trial court's ruling regarding the application of the California Environmental Quality AMICUS BRIEF 10

15 Act to bicycle safety on streets and highways in the State of California. Dated: March 9, 2015 Respectfully submitted, AMICUS BRIEF 11

16 CERTIFICATE OF WORD COUNT (Cal. Rules of Court, Rule 8.204(c)(l)) The text of this Reply Brief consists of 1,934 words as counted by the Microsoft Word word-processing program used to generate the brief. DATED: March 9, 2015 ArvtiCUS BRIEF 12

17 PROOF OF SERVICE I am employed in the County of Yolo; my business address is 129 C Street, Suite 2, Davis, California; I am over the age of 18 years and not a party to the foregoing action. On March 9, 2015, I served a true and correct copy of APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF AMICUS CURIAE BIKE EAST BAY AND CALIFORNIA BICYCLE COALITION IN SUPPORT OF SOS - DANVILLE GROUP ~x_( by mail) on all parties in said action listed below, in accordance with Code of Civil Procedure 10 l3a(3), by placing a true copy thereof enclosed in a sealed envelope in a United States mailbox in the City of Davis, California. Hon. Steven K. Austin c/o Clerk, Contra Costa County Superior Court 725 Court Street Martinez, CA In addition, on the above same day, I also served an electronic copy version of the above-same documents upon counsel for the parties for the parties to this appeal, and on the California Supreme Court as pdf files through the Court of Appeal's website electronic filing vendor, Imagesoft TrueFiling. I declare under penalty of petjury that the foregoing is true and correct. Executed on March 9, 2015, at Davis, California. Donald B. Moone~ AMICUS BRIEF 13

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