STEPHAN C. VOLKER (CSB #63093) GRETCHEN E. … a.h. harris ... save golden gate park, et al. ... verified petition for writ of mandate and complaint for declaratory and

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VER. PET. FOR WRIT OF MANDATE AND

CMPLT. FOR DECL./INJUNCTIVE RELIEF 1

STEPHAN C. VOLKER (CSB #63093) GRETCHEN E. DENT (CSB #222184)JOSHUA A.H. HARRIS (CSB #226898)LAW OFFICES OF STEPHAN C. VOLKER436 14th Street, Suite 1300Oakland, California 94612Tel: (510) 496-0600Fax: (510) 496-1366

Attorneys for Petitioners SAVE GOLDEN GATE PARK, et al.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

SAVE GOLDEN GATE PARK, ALLIANCE FORGOLDEN GATE PARK, STEPHEN WILLIS,CHRISTOPHER DUDERSTADT, and JANICEROTHSTEIN,

Petitioners,

v.

CITY AND COUNTY OF SAN FRANCISCO,BOARD OF SUPERVISORS OF THE CITY ANDCOUNTY OF SAN FRANCISCO, SANFRANCISCO PLANNING DEPARTMENT, SANFRANCISCO PLANNING COMMISSION, SANFRANCISCO RECREATION AND PARKDEPARTMENT, SAN FRANCISCORECREATION AND PARK COMMISSION,GOLDEN GATE PARK CONCOURSEAUTHORITY, and DOES I through XX, inclusive,

Respondents.

MUSIC CONCOURSE COMMUNITYPARTNERSHIP, and DOES XXI through XC,inclusive,

Real Parties in Interest.

))))))))))))))))))))))))))))))))

Civ. No.

VERIFIED PETITION FOR WRITOF MANDATE AND COMPLAINTFOR DECLARATORY ANDINJUNCTIVE RELIEF ANDATTORNEYS’ FEES

(Civ. Code §3422; Code Civ. Proc.§§526, 527, 1060, 1085, 1087,1094.5; Pub. Resources Code§§21168, 21168.5, 21168.9)

10.30812/16/03

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By this Verified Petition and Complaint petitioners allege as follows:

INTRODUCTION

1. This lawsuit seeks to enforce the requirements and achieve the objectives of (1)

the California Environmental Quality Act, Public Resources Code section 21000 et seq.

(“CEQA”), (2) San Francisco’s City General Plan, (3) Proposition J, an initiative adopted by the

voters of San Francisco in 1998 as the Golden Gate Park Revitalization Act, and (4) the Due

Process Clauses of the California and United States Constitutions. Each of these statutory and

constitutional protections was violated when respondents purported to approve a massive, 800-

vehicle parking garage which will destroy the beauty, tranquility, and historic pedestrian

archways of the Music Concourse of Golden Gate Park.

2. Created in 1894 as the Grand Court of Honor for the Mid-Winter International

Exposition, the Music Concourse, the expansive area situated between the M.H. De Young

Museum and the Academy of Sciences (the “Academy”), has served as a calm and secluded area

of assembly and recreation for generations of San Franciscans and sightseers from throughout the

world.

3. The Music Concourse’s formal, symmetric design and carefully proportioned

scale recall a beneficent era when landscape architects strived to comfort and inspire each and

every visitor. An ordered system of paths, lined by evenly-spaced pollarded deciduous trees,

converges on central fountains and is punctuated by historic statuary. Entering the nine-acre

Concourse through one of the historic pedestrian tunnels, the visitor is transported to an

enchanted world in which the hubbub of the City gives way to the serenity and peace of a formal

garden.

4. But this island of tranquility and beauty is now poised on the brink of destruction.

With scant regard for the Music Concourse’s classic, historic architecture as an oasis for

pedestrians, the City has approved an 800-space, semi-underground parking garage (the

“Garage”), comprising two 400-space pods. One pod would run the length of the Concourse on

the deYoung Museum side of the Music Concourse and the other would run the length of the

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Concourse on the Academy of Sciences side.

5. The Garage project would expose the Music Concourse to the visual and aural

intrusion of vehicles using two adjacent partially above ground and partially underground

parking garages. The upper-level of the Garage would open directly onto the Music Concourse,

disrupting public use of the Concourse with the unending screeching tires, stinking exhaust

fumes, echoing car alarms and honking horns for which parking garages are infamous.

6. The Garage would not only pour noise, air, and visual pollution into the

Concourse, it would also create dangerous intersections between pedestrians and automobiles,

destroy historic pedestrian tunnels, and strip the Music Concourse of its historic human-centered

charm and peaceful ambiance. The Garage represents an undisclosed and unstudied attempt to

privatize Golden Gate Park resources, to move toward an automobile-centered model of city

planning and development, and to manipulate the public initiative process to fulfill private

aspirations.

7. The Garage would cause significant adverse environmental impacts that available

alternatives would avoid. Feasible alternatives to improve visitor parking in the area include

utilization of the already existing, but underutilized, UCSF Parking Garage only a few blocks

away for weekend parking. The institution of timed parking (4 hours at a time) on January 1,

2004 in the surrounding Park streets will create enough spaces (freed up from commuter parking)

to sufficiently meet the Park’s weekday needs. Additionally, other designs for the Garage avoid

destruction of historic pedestrian tunnels and decrease the negative impacts on the Music

Concourse by confining the Garage to one side of the Concourse. Respondents ignored these

alternatives in making way for the Garage.

8. Petitioners SAVE GOLDEN GATE PARK, ALLIANCE FOR GOLDEN GATE

PARK, STEPHEN WILLIS, CHRISTOPHER DUDERSTADT, and JANICE ROTHSTEIN

(collectively, “petitioners”) petition this Court for a writ of mandate pursuant to California Code

of Civil Procedure ("CCP") sections 1085 and 1094.5 and for declaratory and injunctive relief

pursuant to CCP sections 526, 527 and 1060 and Civil Code section 3422 setting aside approvals

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of the Garage and related decisions by respondents CITY AND COUNTY OF SAN

FRANCISCO, BOARD OF SUPERVISORS OF THE CITY AND COUNTY OF SAN

FRANCISCO (collectively, "San Francisco" or "the City"), SAN FRANCISCO PLANNING

DEPARTMENT, SAN FRANCISCO PLANNING COMMISSION, SAN FRANCISCO

RECREATION AND PARK DEPARTMENT, SAN FRANCISCO RECREATION AND PARK

COMMISSION, GOLDEN GATE MUSIC CONCOURSE AUTHORITY (“the Authority”), and

DOES I through XX (collectively, “respondents”). The challenged approvals and decisions

permit the construction of the new 800-stall parking garage within the Music Concourse area of

Golden Gate Park by real party in interest, the MUSIC CONCOURSE COMMUNITY

PARTNERSHIP (“MCCP”).

9. Respondents’ approval of the Garage and related facilities, lease and revenue

bonds (the “Project”) violates CEQA, local planning and zoning regulations, and Proposition J,

the proposition that authorizes the construction of the Garage. Respondents improperly rejected

feasible alternatives and mitigating measures that would reduce its impact to insignificance.

Respondents failed to preserve the existing pedestrian uses and environmental amenities of

Golden Gate Park. Respondents ignored Proposition J’s requirements for protection and

enhancement of these uses and amenities.

10. Respondents’ approvals directly contravene the public’s clear mandate for a

revitalized Concourse area, as expressed in Proposition J. Proposition J was passed in 1998 as

the Golden Gate Park Revitalization Act. Proposition J requires the creation of a “pedestrian

oasis” in the Music Concourse and the reduction of the impact of automobiles on the Concourse.

Proposition J authorized, but did not require, the construction of an underground parking garage

as one means of achieving its two interrelated goals. The Garage project as approved violates

Proposition J because it increases rather than reduces the impact of automobiles on the Music

Concourse and fails to create a pedestrian oasis free of vehicular traffic.

11. Proposition J requires that entrances and exits to the Garage originate from

outside of the park. The Garage project as represented in the EIR violates Proposition J because

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it creates an automobile entrance and exit point, not only within the Park, but within the Music

Concourse itself.

12. Proposition J mandates that all funding for the construction of the pedestrian oasis

and related parking garage come exclusively from private funding. The Garage project violates

this mandate by using public funds, from State Proposition 40 monies, to pay for the

environmental studies. The project will also be funded by public revenue bonds.

13. The Garage project also violates Proposition J by turning control of the project

over to a private organization, the MCCP. The City has purported to authorize a 35-year ground

lease with the MCCP to control the Garage improvements and the land on which it is to be built.

Proposition J directed the creation of a non-profit public benefit corporation, the Golden Gate

Park Concourse Authority, to carry out Proposition J’s various mandates. By turning

responsibility over to the MCCP, respondents have not only violated Proposition J. They have

also subverted Proposition J’s Sunshine Law adherence provision because the MCCP refuses to

operate as a public entity.

14. Respondents failed to adhere to CEQA by segmenting their environmental

analysis into three separate projects - the Garage project EIR, Academy of Sciences EIR and the

deYoung Museum EIR. Respondents sidestepped their CEQA duty to consider these projects

and their impacts in an integrated, comprehensive manner. Within the Garage EIR, specifically,

respondents failed to address adequately alternatives to the proposed project and to provide a

complete discussion of the impacts of the Garage on traffic, historical resources, visual resources

and pedestrian circulation.

15. Respondents’ approval of the Garage project also violates the City of San

Francisco’s planning and zoning laws and their requirements for adequately informed, internally

consistent land use planning. The Garage project does not conform to numerous provisions of

the General Plan, nor does it conform to the Priority Policies in section 101.1 of the San

Francisco Municipal Code.

16. Respondents’ approval of the Garage project also violates the Due Process

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Clauses of the United States and California Constitutions. Contrary to these constitutional

protections, the Garage project privatizes management decisions for Golden Gate Park, a public

resource.

17. Petitioners bring this action on their behalf, and on behalf of the public, to compel

respondents to comply with Proposition J, CEQA, the City’s planning and zoning laws and

constitutional protections of petitioners’ due process rights in order to assure that this Project's

adverse impacts are fully disclosed, evaluated and mitigated and to assure compliance with all

applicable laws.

18. Petitioners respectfully request that this Court issue alternative and peremptory

writs of mandate commanding respondents to rescind and vacate all of their approvals for

Garage, including their decisions to (1) certify the Project's EIR, (2) grant discretionary and

ministerial developmental approvals for the Project and its components, (3) provide or facilitate

the financing necessary for development of the Project and the infrastructure associated with the

Project (including approval of a financing plan that does not conform to the strict mandate of

Proposition J that the Garage be paid for exclusively through private donations) in Resolution

740-03, (4) approve the Lease Agreement in Resolution 737-03, and (5) approve consistency

findings in Resolution 738-03, (6) establish parking rates in Ordinance 262-03, and (7) issue all

other approvals to implement the Project.

19. Petitioners also seek this Court’s order commanding respondents to prepare a

legally adequate Environmental Impact Report (EIR), a complete analysis of the project’s

compliance, or non-compliance, with planning and zoning laws and Proposition J, and a final

financial plan for the garage portion of the Project that conforms to the explicit provision of

Proposition J that calls for the garage to be built entirely with money from private donations, as

well as other appropriate remedies.

20. Finally, petitioners request this Court's declaratory and injunctive relief to declare

unlawful and prevent grading, construction and other development activities implementing the

foregoing approvals for the Project unless and until San Francisco complies with Proposition J,

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CEQA, the City’s planning and zoning laws, and the state and federal constitutions.

PARTIES

21. Petitioner SAVE GOLDEN GATE PARK (“Save the Park”) is an unincorporated

association of concerned citizens who reside in the vicinity of Golden Gate Park and use the park

facilities regularly. Members of Save the Park have a vital interest in protecting the integrity of

Golden Gate Park and its many resources. Members of Save the Park use and enjoy Golden Gate

Park, and specifically the Music Concourse, for recreation, aesthetic enjoyment, nature study and

other beneficial purposes. Petitioner Save the Park and its members would be harmed if the

Project is implemented, and the Music Concourse is forever altered. Petitioner Save the Park has

actively participated in numerous meetings concerning the proposed project. It brings this action

on its own behalf, and on behalf of each of its members.

22. Petitioner ALLIANCE FOR GOLDEN GATE PARK (“Alliance for the Park”)is

an association of concerned citizens who reside in the vicinity of Golden Gate Park and use the

park facilities regularly. Members of Alliance for the Park have a vital interest in protecting the

integrity of Golden Gate Park and its many resources. Members of Alliance for the Park use and

enjoy Golden Gate Park, and specifically the Music Concourse, for recreation, aesthetic

enjoyment, nature study and other beneficial purposes. Petitioner Alliance for the Park and its

members would be harmed if the Project is implemented, and the Music Concourse is forever

altered. Petitioner Alliance for the Park has actively participated in numerous meetings

concerning the proposed project. It brings this action on its own behalf, and on behalf of each of

its members.

23. Petitioners STEPHEN WILLIS, CHRISTOPHER DUDERSTADT, and JANICE

ROTHSTEIN are individual members of Save the Park and Alliance for the Park and are

concerned citizens, taxpayers, and residents of the City with recreational and aesthetic interests in

Golden Gate Park.

24. Respondent CITY AND COUNTY OF SAN FRANCISCO is a charter city.

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Respondent CITY AND COUNTY OF SAN FRANCISCO BOARD OF SUPERVISORS

("Supervisors") is, and at all times herein mentioned was, the legislative body of respondent

CITY AND COUNTY OF SAN FRANCISCO. As the decision making body for the Project, the

Supervisors are charged with decisions implementing initiatives such as Proportion J, with

responsibilities under CEQA and other applicable laws regarding the issuance and certification of

the EIR and subsequent Notices of Determination thereon, and with granting various approvals

necessary for the Project. The Supervisors purported to approve the Project by approving

Resolution Nos. 737-03, 738-03 and 740-03 and Ordinance 262-03.

25. Respondents SAN FRANCISCO PLANNING DEPARTMENT and SAN

FRANCISCO PLANNING COMMISSION are responsible for making General Plan consistency

findings and determining whether projects conform to San Francisco Planning Code section

101.1 Priority Policies, and purported to make such findings and determinations in connection

with respondents’ approval of the Project..

26. Respondents RECREATION AND PARK DEPARTMENT and RECREATION

AND PARK COMMISSION represent the division of the of the City’s administration with direct

responsibility for managing Golden Gate Park, and purported to recommend approval of the

Project.

27. Respondent GOLDEN GATE PARK CONCOURSE AUTHORITY (“the

Authority”) is a non-profit public benefit corporation. The Authority was authorized by

Proposition J for the express purpose of carrying out its objectives. The Authority is a public

agency of the City and County of San Francisco, and purported to approve the Project..

28. Petitioners are unaware of the true names and capacities of Respondents DOES I

through XX, and sue such respondents by fictitious names. Petitioners are informed and believe,

and based on such information and belief allege, that the fictitiously named respondents are also

responsible for the actions challenged in this Petition and Complaint. When the true identities

and capacities of these respondents have been determined, petitioners will amend this Petition

and Complaint, with leave of court if necessary, to insert such identities and capacities.

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29. Real Party in Interest MUSIC CONCOURSE COMMUNITY PARTNERSHIP

(“MCCP”) is a non-profit, public benefit corporation, incorporated under California law. The

MCCP has substituted itself for the Authority and intends to be responsible for construction and

management of the Garage. The MCCP intends to receive funds raised by the proposed bond

measure in order to build and manage the Garage. The MCCP will receive a leasehold interest

on the improvements and real property involved in the Garage project for the duration of the

lease, up to 35 years. Unlike the Authority, the MCCP is not a public agency of the City and

County of San Francisco.

30. Petitioners are unaware of the true names and capacities of real parties in interest

DOES XXI through XC, and sue such real parties in interest by fictitious names. Petitioners are

informed and believe, and based on such information and belief allege, that the fictitiously

named real parties in interest have an interest in the actions challenged in this Petition and

Complaint. When the true identities and capacities of these real parties in interest have been

determined, petitioners will amend this Petition and Complaint, with leave of court if necessary,

to insert such identities and capacities.

JURISDICTION AND VENUE

31. The San Francisco County Superior Court has jurisdiction over the matters alleged

herein pursuant to Code of Civil Procedure sections 526, 527, 1060, 1085, 1087 and 1094.5 and

Public Resources Code sections 21168 and 21168.5.

STANDING

32. Petitioners have standing to assert the claims raised in this Petition and

Complaint. As described above, petitioners are beneficially interested in this matter.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

33. Petitioners have performed any and all conditions precedent to the filing of this

Petition and Complaint, and have participated in all phases of the administrative and

environmental review process, and thus have fully exhausted their administrative remedies. (Pub.

Resources Code, §21177, subd. (a).)

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34. Respondents have taken final agency action with respect to the approval of the

Garage project challenged herein. Respondents have certified the EIR for the Garage, approved a

bond measure to fund the Garage, approved a lease agreement with the MCCP, and passed an

ordinance setting parking rates at the future garage. Respondents have a mandatory duty to

comply with local, state, and federal law, including, but not limited to, Proposition J, CEQA, the

City’s planning and zoning laws and the Due Process Clauses of the state and federal

constitutions, prior to undertaking the discretionary approvals at issue in this lawsuit. Petitioners

possess no remedy to challenge the approvals at issue in this action other than by means of this

lawsuit.

NOTICE

35. On December 18, 2003, petitioners mailed to respondents a letter stating

petitioners’ plans to immediately file this Petition for Writ of Mandate and Complaint for

Declaratory and Injunctive Relief seeking to invalidate respondents’ approvals of the Garage

project. Through that letter, petitioners complied with Public Resources Code section 21167.5.

(See petitioners' Notice of Intent and Proof of Service filed concurrently herewith.)

RELIEF REQUESTED

36. Petitioners seek an alternative writ of mandamus, a peremptory writ of mandamus,

declaratory relief, temporary and permanent injunctive relief, costs, and attorneys' fees.

A. Alternative and Peremptory Writs of Mandamus (Code Civ. Proc., §§1085, 1087; Pub. Resources Code, §§21168.5, 21168.9)

37. Petitioners seek alternative and peremptory writs of mandate pursuant to Code of

Civil Procedure section 1085, which provides that a writ of mandate “may be issued by any

court... to any inferior tribunal, corporation, board, or person, to compel the performance of an

act which the law specially enjoins, as a duty resulting from an office, trust, or station,” Code of

Civil Procedure section 1087, which provides that "[t]he writ may be either alternative or

peremptory," and Code of Civil Procedure section 1094.5, which provides that a writ of mandate

may be "issued for the purpose of inquiring into the validity of any final administrative order

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made as a result of a proceeding in which by law a hearing is required to be given, evidence is

required to be taken, and discretion in the determination of facts is vested in the inferior tribunal,

. . . board, or officer."

38. Petitioners also seek alternative and peremptory writs of mandate pursuant to

Public Resources Code sections 21168.5 and 21168.9. Section 21168, applicable in

administrative mandamus actions involving alleged violations of CEQA, provides as follows:

Any action or proceeding to attack, review, set aside, void or annula determination, finding, or decision of a public agency, made as aresult of a proceeding in which by law a hearing is required to begiven, evidence is required to be taken and discretion in thedetermination of facts is vested in a public agency, on the groundsof non-compliance with the provisions of this division shall be inaccordance with the provisions of Section 1094.5 of the Code ofCivil Procedure.

In any such action, the Court shall not exercise its independentjudgment on the evidence but shall only determine whether the actor decision is supported by substantial evidence in light of thewhole record.

39. Section 21168.5, applicable in traditional mandamus actions involving alleged

violations of CEQA, provides as follows:

In any action or proceeding, other than an action or proceedingunder section 21168, to attack, review, set aside, void or annul adetermination, finding, or decision of a public agency on thegrounds of noncompliance with [CEQA], the inquiry shall extendonly to whether there has been a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceededin a manner required by law or if the determination or decision isnot supported by substantial evidence.

40. Public Resources Code section 21168.9 authorizes a court, after determining that

a respondent agency has violated CEQA, to issue a peremptory writ of mandate requiring the

agency to void or suspend decisions for which CEQA compliance was necessary, or to take other

steps necessary to bring its decisions into compliance with CEQA. Petitioners request that,

pursuant to subdivision (a)(1) of section 21168.9, the Court issue a peremptory writ requiring the

City to void its certification of the Garage EIR and all approvals for the Garage projects.

41. Section 21168.9, subdivision (b), provides that “[t]he trial court shall retain

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jurisdiction over the public agency’s proceedings by way of a return to the peremptory writ until

the court has determined that the public agency has complied with [CEQA].”

42. Petitioners seek alternative and peremptory writs of mandate on the grounds that,

by approving the Project without first properly complying with CEQA, the City’s planning and

zoning laws, Proposition J, and the Due Process Clauses of the state and federal constitutions,

respondents prejudicially abused their discretion within the meaning of Public Resources Code

sections 21168 and 21168.5 and Code of Civil Procedure sections 1085 and 1094.5.

B. Temporary and Permanent Injunctive Relief (Code Civ. Proc., §§526, 527; Civ. Code, §3422)

43. Petitioners request declaratory relief pursuant to Code of Civil Procedure section

1060, which provides, in pertinent part, that:

Any person ... who desires a declaration of his or her rights orduties with respect to another, or in respect to, in, over or uponproperty ... may, in cases of actual controversy relating to the legalrights and duties of the respective parties, bring an original action... in the Superior Court ... for a declaration of his or her rights andduties in the premises.... He or she may ask for a declaration ofrights or duties, either alone or with other relief; and the court maymake a binding declaration of these rights or duties, whether or notfurther relief is or could be claimed at the time. The Declarationmay be either affirmative or negative in form and effect, and thedeclaration shall have the force of a final judgment.

(Code of Civ. Proc., section 1060.)

C. Temporary and Permanent Injunctive Relief (Code Civ. Proc., sections 526, 527; Civ. Code, section 3422)

44. Petitioners request injunctive relief pursuant to Code of Civil Procedure section

526, which provides, in pertinent part, that:

“(a) An injunction may be granted in the following cases:

(1) When it appears by the complaint that the plaintiff is entitled to the reliefdemanded, and the relief, or any part thereof, consists in restraining thecommission or continuance of the act complained of, either for a limitedperiod or perpetually.

(2) When it appears by the complaint or affidavits that the commission orcontinuance of some act during the litigation would produce waste, orgreat or irreparable injury, to a party to the action.

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(3) When it appears, during the litigation, that a party to the action is doing, orthreatens, or is about to do, or is procuring or suffering to be done, someact in violation of the rights of another party to the action respecting thesubject of the action, and tending to render the judgment ineffectual.

(4) When pecuniary compensation would not afford adequate relief.

(5) Where it would be extremely difficult to ascertain the amount ofcompensation which would afford adequate relief.

(6) Where the restraint is necessary to prevent a multiplicity of judicialproceedings.”

(Code Civ. Proc., §526, subd. (a).)

45. Petitioners also request temporary injunctive relief pursuant to Code of Civil

Procedure section 527, which provides that the Court may issue a temporary restraining order or

a preliminary injunction if the plaintiff (or petitioner) meets specified criteria.

46. Finally, petitioners request permanent injunctive relief pursuant to Civil Code

section 3422, which provides that the Court may issue a permanent injunction if the plaintiff

meets specified criteria. (See also, San Joaquin Raptor/Wildlife Rescue Center v. County of

Stanislaus (1994) 27 Cal.App.4th 713, 741-742 (acting pursuant to Public Resources Code

section 21168.9, court issues injunction prohibiting respondent from altering project site pending

full compliance with CEQA).)

47. Respondents’ actions will result in irreparable harm to petitioners and the public

at large in that the Project as approved will cause significant environmental impacts that will not

be mitigated to less than significant levels.

48. Petitioners have no plain, speedy, or adequate remedy in the ordinary course of

law. No money damages or other legal remedy could adequately compensate petitioners for the

harms described in the preceding paragraphs.

D. Attorneys' Fees and Costs (Code Civ. Proc., §§1021.5, 1032; Gov. Code, §800)

49. This litigation involves the enforcement of an important right affecting the public

interest. Accordingly, if petitioners are successful in prosecuting this action, petitioners will

confer a substantial benefit on the citizens of the affected area and region, and therefore will be

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entitled to an award of reasonable attorneys’ fees pursuant to section 1021.5 of the Code of Civil

Procedure.

50. Petitioners also bring this action pursuant to Government Code section 800, which

awards petitioners up to $7,500.00 in attorneys’ fees in actions to overturn agency decisions,

such as those at issue herein, that are arbitrary and capricious.

51. Additionally, petitioners request reimbursement for costs pursuant to Code of

Civil Procedure section 1032, subdivision (b), which provides that “[e]xcept as otherwise

expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in

any action or proceeding.”

FACTUAL BACKGROUND

52. The Music Concourse was created in 1894 to serve as the Grand Court of Honor

for the Mid-Winter International Exposition. Almost nine acres of formal open space are

surrounded by an earthen berm, creating an intimate and sheltered bowl. Within this bowl, the

Concourse’s main features include a symmetric system of pedestrian paths lined by evenly-

spaced pollarded deciduous trees, the Spreckles Temple of Music (1899) with rows of spectator

benches, various fountains including the Rideout Fountain (1924) and the Charles Hall Page

Fountain (1914), the Kennedy Drive Underpass (1896), three pedestrian tunnels (1900) that

provide direct pedestrian access to the rest of the park and surrounding neighborhoods, and

multiple historic monuments and statutes including the Francis Scott Key Monument (1888)

which is listed as City Landmark No. 96 under Article 10 of the Planning Code of San Francisco.

The Music Concourse is flanked by the deYoung Museum on one side and the Academy on the

other.

53. Respondents propose to build the Music Concourse Underground Parking Facility

(“the Garage”) under and within the Music Concourse berms. The Garage would accommodate

800 cars in two separate 400-car pods. Each pod would consist of a two-level semi-underground

parking structure. One portion of the Garage is to be located under Tea Garden Drive between

the deYoung Museum and the Music Concourse. The other portion would be located under

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Music Concourse Drive between the Academy and the Music Concourse. The upper levels of

both sections of the Garage would open directly into the Music Concourse via large pedestrian

portals. In addition, four emergency exit wells would be carved out of the berms surrounding the

Music Concourse. The two separate garages, one on each side of the Music Concourse, would be

connected by an underground vehicular tunnel at the east end of the Concourse. Respondents

plan two entrance and exit points for vehicles – one from outside the park at Tenth Avenue and

Fulton Street and one from inside the park, extending from inside the Music Concourse area to

Music Concourse Drive.

A. Proposition J Physical Requirements for Improvements to the Music Concourse

54. In 1996, San Franciscans soundly rejected Proposition B, a bond measure to fund

the rebuilding of the deYoung Museum and the construction of a 360 car underground garage

within Golden Gate Park.

55. Two years later, San Franciscans voted on two separate propositions that are, in

combination, substantially similar to the rejected Proposition B, but altered to make the Garage

portion of the project more palatable. Proposition A, authorizing the rebuilding of the deYoung

Museum, remained basically unchanged. However, the phrasing of the Garage component in

Proposition J, the “Golden Gate Park Revitalization Act of 1998,” was much reshaped in the two

years since the rejection of the original Garage proposal. Proposition J authorizes the City and

County of San Francisco to “revitalize” the Music Concourse and “ensure the future of Golden

Gate Park as a public treasure.” Proposition A failed. Proposition J passed.

56. Proposition J has two purposes stated explicitly in the text of the proposition.

First, the measure mandates the creation of a “pedestrian oasis” in the Music Concourse. The

literature in support of the Proposition showed an expansive track around the Music Concourse,

completely free of cars and buses, where families wheel baby carriages, cyclists and skaters

cruise unimpeded by vehicular traffic, and pedestrians make their way to and from the various

attractions in the Concourse. Proposition J bolsters the pedestrian oasis concept by including

provisions “to beautify and enhance the natural and scenic landscape of the Concourse area of

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Golden Gate Park.”

57. Proposition J’s second stated purpose is to “take steps to reduce the impact of

automobiles in the Park while still providing long-term assurance of safe, reliable and convenient

access for visitors to the Park.” In furtherance of the second purpose, Proposition J authorized

the construction of a parking garage in order to “minimize the potential conflict between

recreational enthusiasts and automobile traffic within the Park.”

58. The Garage project has diverged from Proposition J’s two fundamental goals.

First, contrary to the pedestrian oasis concept sold to the voters, the Garage project allows

expanded car and bus use of the Concourse roads, with 400 and 430 foot-long loading zones

which would accommodate 30 cars or 12 buses at a time. The roads encircling the historic Music

Concourse would be congested with, rather than free from, traffic. The Project will not fulfill the

promise of a pedestrian oasis if the Garage proceeds as planned.

59. Second, the Garage itself does not decrease the impact of automobiles in Golden

Gate Park. Instead it would increase vehicular traffic, including related noise and concentrated

pollution, in the Music Concourse and surrounding park and residential areas. The Garage

expands parking availability in the Music Concourse and therefore will bring more traffic to the

area. Inside the Concourse, the Garage has even greater negative impacts. The upper level of the

Garage will open directly onto the formal garden. Currently, there is no automobile access that

intrudes upon the sunken Concourse’s pedestrian emphasis and design. With the introduction of

the Garage, its attendant wide exits and entrances, noise and pollution, metal and glass pay

booths, and fire escape pits, the Concourse will lose its bucolic charm and pedestrian-centered

ambiance.

60. In addition to failing to adhere to the two principal purposes of Proposition J, the

Garage project also violates many of Proposition J’s specific provisions.

61. First, the Garage proposal fails to fulfill the Proposition J mandate that vehicular

entrances and exits originate outside the Park. While one entrance to the Garage is outside the

Park, the other has been sited within the Music Concourse itself, introducing more cars into the

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Concourse. The second vehicular access point stems from Music Concourse Drive, adjacent to

the Spreckels Temple of Music.

62. Second, the Garage proposal contravenes Proposition J by destroying a historic

pedestrian passage between Shakespeare Gardens and the Music Concourse, and replacing it with

a passageway through the Garage. Proposition J states that the Garage will “minimize the

potential conflict between recreational enthusiasts and automobile traffic within the Park.” The

proposed passageway through the Garage forces pedestrians to cross lanes of traffic.

Alternatively, the Project proposes to reroute pedestrian traffic over the Garage. This too causes

conflict, as it would force pedestrians to cross Music Concourse Drive. Both of these

alternatives increase conflict between people and cars in direct contravention of Proposition J.

63. Third, Proposition J requires that the City follow its own transit-first policy in

implementing the pedestrian oasis. Instead, respondents propose to spend the whole of the $55

million raised through the issuance of bonds on only the Garage, and to rely on public funds to

improve access via public transportation systems and intra-park shuttles.

B. Proposition J Administrative Mandates

64. Along with detailing the physical nature of the Music Concourse revitalization,

Proposition J directed the City as to the methods it must use to accomplish the project goals. The

Garage project has veered from these Proposition J administrative mandates.

65. Proposition J directed the creation of a “non-profit public benefit corporation” to

be named the Golden Gate Park Concourse Authority (“GGPCA”). The GGPCA is charged with

carrying out the activities related to the Music Concourse revitalization under the auspices of the

Recreation and Park Commission. The Mayor appoints GGPCA officers subject to the same

regulations as would apply to the appointment of City Commissioners. The officers of the

GGPCA are considered City officers and are subject to the conflict of interest rules that apply to

City officers. The GGPCA is very similar to a public agency.

66. The GGPCA, however, has handed the Garage project over to a private entity, the

MCCP. The MCCP has guided the Project through the environmental review process and is

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planning to act as the lead corporation in the construction and management of the Garage. The

MCCP will gain control over the land and the Project through a 35-year lease agreement with the

City. Proposition J did not authorize privatizing a portion of Golden Gate Park for 35 years. In

fact the GGPCA was directed by Proposition J to build the Garage and then hand the structure

over to the City free of charge upon completion. The 35-year lease agreement is tied to another

Proposition J conflict: the proponents of the Garage have not raised enough money through

private donations to pay for the Garage.

67. According to Proposition J the activities of the GGPCA, including the

construction of the Garage and the improvements to the Music Concourse, shall be paid “entirely

with funds received through one or more philanthropic donations.” Further, Proposition J states,

“[n]o public funds shall be used in the construction of the Underground Facility,” except to

coordinate construction activities with the deYoung Museum and the Academy of Sciences

projects.

68. Respondents have already spent public funds to pay for preparatory work for the

Garage. Respondents have used State Proposition 40 (“The California Clean Water, Clean Air,

Safe Neighborhood Parks, and Coastal Protection Act of 2002") funds to pay for environmental

studies and review. In addition the respondents plan to use $7.5 million more from Proposition

40 as a means to supplement the “surface improvements” goal of Proposition J.

69. The GGPCA and the MCCP have failed to produce adequate funds from private

donations to construct the Garage and make the Music Concourse improvements. The Garage is

going ahead, except now respondents propose to fund it with a bond issued by the Association of

Bay Area Governments (“ABAG”). The bond will be repaid out of revenues from the Garage,

but according to Proposition J, those revenues, from the initial moment of Garage operation,

were to be used exclusively for “operation, maintenance, improvement or enhancement of

Golden Gate Park . . . .” The combination of public funding and the 35-year lease to a private

entity reverses the basic structure of Proposition J, giving the voters a private garage paid for by

public money instead of a public garage paid for by private money.

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70. In addition, the GGPCA was partly created so as to avoid the difficulties of

spending public funds. According to Proposition J, “[i]t is the intent of the People of the City

and County of San Francisco in adopting this ordinance that the Underground Parking Facility

shall be designed and constructed in an expeditious manner, with private funds, and shall not be

undertaken as if such design and construction were the design and construction of a conventional

public work.”

71. The use of public funds creates a conflict with Proposition J’s no public funding

stance. If the MCCP engages in the bidding and advertising procedures required by law when

using public funds, it will violate Proposition J. If the MCCP adheres to Proposition J, it will

violate public funding laws. Proposition J did not contemplate, and the voters did not approve,

the funding for the Garage through public sources.

72. Also of importance, Proposition J states explicitly that the GGPCA meetings

“shall be called, noticed, held and conducted subject to the provision of the Ralph M. Brown

Act” and the “San Francisco Sunshine Ordinance.” Section 5 of Proposition J. Additionally, all

“records of the Authority shall be deemed ‘public records’ for the purposes of the Public Records

Act” and “‘public information’ for purposes of the San Francisco Sunshine Ordinance.”

73. The MCCP, however, has refused to divulge any information to the public

concerning its meetings, plans, or other related documents. It has refused petitioners’ requests

for information. Letter from MCCP to Alliance for Golden Gate Park dated March 17, 2003.

The substitution of the MCCP for the GGPCA has undermined the public’s protections as

required in Proposition, violating petitioners’ due process rights under the state and federal

constitutions.

C. CEQA REVIEW

74. This Project required environmental review pursuant to the California

Environmental Quality Act (CEQA). On May 18, 2002, the Golden Gate Park Concourse

Authority issued an Initial Study for the Garage and found that the Garage would not have

significant effects on land use, light and glare, population, utilities and public services, biology,

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geology and topography, water, hazards, energy and natural resources, and archaeological

resources. The Authority found however that the areas of visual quality, historic resources,

transportation, noise, and air quality warranted further study.

75. On December 14, 2002, the Golden Gate Park Concourse Authority Projects (i.e.,

the Garage) Draft EIR (“DEIR”) was published. The San Francisco Planning Department then

took public comments until January 28, 2003. The public hearing date was set for January 23,

2003. Petitioners and others commented extensively on the Draft EIR at both the public hearing

and in writing.

76. On July 24, 2003, the Planning Commission certified the Final EIR for the

Garage. Issues which had been raised by petitioners and others were either ignored or

inadequately addressed in the Final EIR. The Commission found, contrary to the evidence, that

the Phase I project would have no significant impacts.

77. During the public participation phase of the environmental review, the public

provided comment as to the following EIR deficiencies:

Cumulative Effects

78. The Garage EIR reflects a fundamental flaw in the planning process for the Music

Concourse area in that it evaluates the Garage project separately from the rebuilding of the

Academy of Sciences and the rebuilding of the DeYoung Museum. All three of these projects

will take place simultaneously. Both of the institutions’ expansions are directly linked to the

Garage project as the proponents have received waivers of applicable parking provisions based

on the assumption that the Garage will be constructed. The Garage is being built to serve the

new and expanded institutions directly, yet the environmental review and analysis claim that the

three projects are separate and distinct. The segmentation of the analysis allows many of the

cumulative effects of the three projects to evade identification and mitigation.

79. The Garage EIR purports to address the segmentation concern by analyzing the

cumulative effects of the three projects within the one EIR. It fails to do so. First, the traffic

analysis insufficiently addresses the effects of increased numbers of visitors to the DeYoung

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Museum and the Academy of Sciences. The traffic analysis fails to account for massive

increases in traffic due to “blockbuster” traveling exhibits at the museums. Similarly, the EIR

does not address traffic increases based on community events that occur often in the Music

Concourse, such as Brazil Day (5,000 visitors), Sing Tao Music Day (3,000 visitors), Pakistan

Independence Day (3,500 visitors), and Run to the Far Side (10,000 visitors).

80. Second, the Garage EIR fails to address the decrease in pedestrian access to the

Music Concourse from the South caused by the combination of the Garage’s closure of the

Southwest tunnel and the construction of the new Academy of Sciences building.

81. Third, the EIR fails to discuss the cumulative impacts of the three major

construction projects on the park including the noise and the air pollution produced by all three

sites and the parking availability for construction workers for all three projects.

82. Finally, the EIR does not address the parking needs of the 350 museum staff and

docents who will not be allowed to use the Garage and will also be prevented from parking on

nearby streets by the implementation of timed parking beginning January 1, 2004. Without an

EIR that discusses that combined impacts of these three massive projects, the public and City

decisionmakers were without the tools to accurately evaluate the need for and impact of all the

projects, including the Garage.

Alternatives

83. The EIR also failed to identify and analyze alternatives to the proposed project to

the extent necessary to fulfill CEQA requirements.

84. First, the EIR did not adequately discuss the “No Garage” alternative. The

discussion in the “Impacts” section of the “No Project” alternative states the Music Concourse

would remain substantially untouched, then lists all of the improvements that will occur with or

without the Garage construction. Among the many improvements, the EIR lists parking

management, road closures, traffic calming, bicycle and pedestrian improvements, and the

continuation of the Intra-Park Shuttle. The discussion however does not address the impacts of

these improvements on the Music Concourse without a Garage. Without a clear understanding

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of the impacts of the changes that will occur regardless of the Garage, the desirability of the

proposed Project cannot be accurately evaluated against a no-project alternative.

85. For example, “parking management” includes the initiation of timed parking (4

hour limitations) in the area of the Concourse starting on January 1, 2004. Because many

commuters use Golden Gate Park spots as free parking for the day, timed parking will

dramatically increase the availability of parking in the Concourse. Under CEQA, the no-project

alternative must examine the timed parking event separately from the Garage parking impacts, so

that decisionmakers can make an informed decision on the necessity of the Garage.

86. Second, the Draft EIR remarkably failed to discuss in sufficient detail any design

alternative to the Garage. The Draft listed design alternatives considered, but failed to give the

public adequate information on the alternatives so that it could make informed comments. All of

the main alternatives revealed to the public in the Draft EIR included a two-pod, two-level

garage. The so-called alternatives related to variations on the red herring Phase II element of the

environmental study, an underground through-street designed to reduce traffic in the Concourse.

This underground through-street was seemingly never considered economically feasible. Phase

II was in fact excluded from the project proposal because it could not be built within the budget.

The inclusion of alternatives based on Phase II variations, including discussions of variations to

surface circulation, to the exclusion of alternatives to the Garage design does not provide the

reasonable range of possible projects necessary for CEQA review.

87. One design alternative which was finally addressed in the Responses to comments

calls for the Garage to be built on one side of the Music Concourse only. This design allowed for

the same number of parking spaces, excluded the vehicular entrance within the Concourse, and

preserved the historic tunnels and pedestrian circulation patterns. By excluding this design

alternative from the Draft EIR, the analysis failed to provide the public with a reasonable range

of project proposals on which to comment.

88. Similarly, the EIR fails to consider locating the Garage in another place.

According to CEQA, alternatives include project proposals describing a similar facility in

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another location. The EIR here does not discuss placing the Garage at the edge of the park to

minimize impacts on the Music Concourse, nor does it discuss using parking facilities already in

existence in the immediate area, such as the UCSF Garage with 800 empty spaces on Sundays, as

an alternative to building a new facility.

Visual Quality

89. The EIR erroneously concludes that the effects of the Garage on visual resources

in the Concourse will be less than significant. The Concourse environment will be significantly

degraded by the operation of the 800-stall Garage.

90. The EIR completely fails to discuss the effect of four emergency exits on the

visual resources on the Music Concourse. The Visual Quality chapter of the EIR contains

misleading information:

The only features of the proposed Underground Parking Facility that would be visible fromany area in the Park would be the Parking Facility pedestrian entrances to the MusicConcourse Bowl, the reconstructed stairs and ramps from the Music Concourse Bowl to theupper Concourse level as part of the surface improvements to the Music Concourse Bowl,the three reconstructed pedestrian tunnels at the northeast, southeast, and southwest of theConcourse, the vehicle ramps from Tenth Avenue and Academy Drive (Music ConcourseDrive), and the ventilation structures.

The EIR does not mention the emergency exits and therefore addresses only a portion of the visual

impacts on the Music Concourse, completely overlooking four large, concrete holes in the

Concourse.

In addition, the EIR failed to adequately consider the effects of the vehicular entrance inside

the Concourse, the ventilation shafts (up to 14 feet in diameter and approximately 10 feet high), the

garage entry doors within the concourse, and the pay gate within the Concourse on the Concourse’s

visual resources. In all cases, these impacts on the visual quality of the Concourse were deemed less

than significant in the EIR, despite their cumulative impact on the Concourse’s environment.

Historical Resources

91. The EIR inadequately addressed the impacts of the Garage on the historical

resources in the Music Concourse and on Golden Gate Park as a whole. Golden Gate Park has

been proposed to be added to the National Register of Historic Places “as a historic landscape

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having achieved historical significance for the period between 1870 and 1943,” the period in

which the Music Concourse and the pedestrian tunnels were built. DEIR p. 84. The Park and its

defining features, such as the Music Concourse, must be preserved or the changes will be a

substantial adverse change as defined by CEQA. The EIR erroneously concludes that the

alterations to the Music Concourse will not significantly alter the Music Concourse as a historical

resource despite the demolition of the three historic tunnels.

92. The tunnels “are established elements of the Music Concourse pedestrian

circulation.” DEIR p. 90. In December 2002, the Landmark Resource Advisory Board (an

official City body which advises the Planning Commission on architectural historical issues)

released a determination of significance for the three pedestrian tunnels in the Music Concourse.

Two of the three tunnels will be destroyed and then reconstructed in substantially different and

narrower form. The third tunnel will be destroyed and rebuilt as a Garage entrance. The

entrance will lead to a pedestrian throughway that traverses two lanes of traffic within the

Garage. The destruction of the three pedestrian tunnels is a significant, adverse impact of the

Garage project. As the EIR itself explains:

The pedestrian tunnel is directly associated with improvements made to the MusicConcourse around the turn of the century and is a character defining feature. Thisproposed variant would remove or destroy an original architectural feature associatedwith the Music Concourse, an important cultural precinct within Golden Gate Park.Removing the tunnel and eliminating the subterranean pathway would alter thespatial orientation and the circulation pathway between the Music Concourse to theShakespeare Garden. The underground pathway establishes a pedestrian linkbetween two park features. The proposed alterations would appear to violate theSecretary’s Standards for Rehabilitation 1, 2, and 5 and would diminish the integrityof Golden Gate Park and the Music Concourse.

DEIR p. 91. The quotation refers to the Secretary of the Interior’s Standards for Rehabilitation

which state “new construction shall not destroy historic materials, features, and spacial

relationships that characterize the property. The new work shall be differentiated from the old

and shall be compatible with the historical materials, features, size, scale and proportion, and

massing to protect the integrity of the property and its environment.” Secretary of the Interior’s

Standards for Rehabilitation. The EIR concedes that the reconstruction of the tunnels must

conform to the Secretary’s Standards, but then states that the alterations to the tunnels would

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violate the Standards.

93. The EIR thereafter illogically concludes that the destruction of the tunnels would

“be minor, and would not materially impair the potential significance of the resource [the Music

Concourse].” DEIR p. 91. The EIR inadequately addressed these issues and erroneously

concluded that the impacts of the Garage on historical resources would be “less than significant.”

Pedestrian Circulation

94. The EIR inadequately analyzed Garage impacts to pedestrian circulation in the

Concourse. While Proposition J’s central goal is the creation of a pedestrian oasis, the EIR’s

focus is only on building the Garage. The EIR erroneously found that the Garage would have no

significant impact on pedestrian resources in the Concourse. According to the EIR, “the project

would have a significant effect on the environment if it would result in substantial overcrowding

on public sidewalks, create potentially hazardous conditions for pedestrians, or otherwise

interfere with pedestrian accessibility to the site and adjoining areas.” DEIR p. 115.

95. Pedestrians will be severely disadvantaged by the destruction of the southwest

tunnel. The path from the Shakespeare Gardens to the Concourse originally took pedestrians

through the southwest pedestrian-only tunnel. With the construction of the Garage, pedestrians

will walk through the Garage. Pedestrians will face the danger of traversing two lanes of traffic

in the Garage and be exposed to all of the unpleasantries of parking garages, including air and

noise pollution.

96. The rerouting of pedestrians over the berm in the southwest area of the Concourse

is equally inadequate. Pedestrians will be forced to cross Academy Drive, thereby introducing a

dangerous intersection between pedestrians and automobiles. Compounding the problem, the

Garage’s in-park vehicular entrance and exit ramp is also in the southwest corner of the

Concourse. Cars will emerge from the Garage at a steep angle, heading East into the direction of

the afternoon and setting sun, thus presenting another dangerous element to an already

unworkable pedestrian plan.

97. In its Summary of Comments and Responses, respondents discuss future plans for

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pedestrian and bicycle improvements. The discussion of speculative future actions does not

counteract the serious degradation of the pedestrian facilities in the Concourse. The EIR

erroneously found that the construction of the Garage would have no significant, adverse impact

on pedestrians because the Garage will create dangerous conditions for pedestrians in the

Southwest area of the Music Concourse.

Traffic

98. Traffic studies in the EIR are also inadequate. The studies conducted in May

2002 reflect traffic during a markedly low tourist time following the occurrences of September

11 and the resulting decreases in tourism. Therefore the baselines are too low and inaccurate.

Additionally, the EIR fails to analyze traffic impacts in the Concourse itself, including questions

pertaining to the traffic impacts of loading zones for 12 buses or 30 cars in front of the two

museums.

99. The EIR fails to address increases of traffic in the Ninth Street corridor and the

impacts of the intra-park entrance/exit on the intersection of Martin Luther King Drive and Ninth

Avenue, including those impacts on the Municipal Railway.

Actions Taken After Certification

100. On Monday, August 13, 2003, petitioners filed with the Clerk of the Board of

Supervisors an appeal from the action of the Planning Commission certifying the Final EIR for

the Garage project pursuant to California Public Resources Code section 21151(c).

101. On September 16, 2003, the Board of Supervisors denied petitioners’ appeal.

102. This action has been brought no later than 30 days after the earliest date that a

Notice of Determination might have been filed by the City, as required by Public Resources Code

section 21167(b).

D. CITY PLANNING

103. After the City’s purported CEQA review, various City departments began to

undertake actions to approve the Garage project. In these actions by the Planning Commission,

the Recreation and Park Department, the Golden Gate Park Concourse Authority, the Board of

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Supervisors Financing Committee, and eventually the Board of Supervisors themselves, review

of the “Garage project” entailed review of some or all of the following issues: 1) the Garage

project’s consistency with the San Francisco General Plan and Planning Code section 101.1

Priority Planning Policies; 2) implementation of the associated Concourse Surface Improvement

Project and Transportation Implementation Plan; 3) the Ground Lease to the MCCP; 4) the Bond

Financing Measure; and 5) the parking rate ordinance.

General Plan

104. First, on October 2, the Planning Commission erroneously found consistency

between the Garage project and the San Francisco General Plan.

105. The Planning Commission addressed some pertinent provisions in the General

Plan, but failed to adequately address the negative impacts of the Garage on the Music Concourse

and surrounding area. In addressing the Garage’s consistency with Recreation and Open Space

(R.O.S.) Policy 2.2 that requires preservation of existing public open space, the Commission

stated that “the Project would not reduce or negatively impact any existing open space.” But, the

presence of two Garages on either side of the Music Concourse negatively impacts its historic

open space.

106. Similarly, the Planning Commission failed to address the Garage’s inconsistency

with R.O.S. Policy 2.4 that requires a gradual elimination of non-recreational use in parks and

reduction of automobile traffic in and around public open spaces. The Commission stated that

the Garage will “reduce automobile traffic in the vicinity of the Music Concourse,” yet if the

Garage is built, it will increase parking availability in the area and therefore bring more traffic to

an already busy area in Golden Gate Park. In its explication of R.O.S. Policy 2.4, the General

Plan states that the “following methods of reducing traffic in and around public open space are

consistent with the urban design and transportation elements of the Master Plan and should be

applied where possible: . . . prohibit construction of new roads and parking lots in developed

public open spaces; encourage walking and the use of bicycles and public transit for recreational

travel.” The construction of the Garage, a magnet for automobile travel, cannot possibly be in

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conformity with the General Plan R.O.S. Policy 2.4.

107. The Planning Commission found consistency with Urban Design (U.D.) Policy

2.2, which limits “improvements in other open spaces having an established sense of nature to

those that are necessary, and unlikely to detract from the primary values of the open space.” In

its explanation of U.D. Policy 2.2, the General Plan states that “the recreation and open space

values of parks and other open and landscaped areas developed by man ought not to be reduced

by unrelated or unnecessary construction . . . . Facilities that can be accommodated outside of

established parks and open spaces should be placed at other appropriate locations.” The Planning

Commission wrote that the voters determined that the Project was necessary by passing

Proposition J. To the contrary, the voters passed the Golden Gate Park Revitalization Act to

create a pedestrian oasis in the Music Concourse. The Garage was authorized, but not required

in Proposition J, as one means of achieving the “pedestrian oasis” goal. The Garage is simply an

option, not a necessary element of the fulfillment of Proposition J. Moreover, as opponents of

the Garage project have repeatedly pointed out, existing parking garages in the vicinity could

accommodate the parking needs of the Music Concourse facilities.

108. The General Plan further elucidates U.D. Policy 2.2, by noting that “parking

garages and other facilities should not be placed beneath the surface in these [open space] areas

unless the surface will retain its original contours and natural appearance . . . . The net effect of

any changes in parks and open spaces should be to enhance their visual qualities and beneficial

public use.” Although the Project designers have attempted to retain the original contours of the

berm surrounding the Music Concourse, it is clear they have not achieved this goal.

Significantly, the faces of the berms will not retain their original appearance, as two main garage

entrances will be added and four emergency exits will be dug into the hillsides.

109. Under the “Transportation Element” section of its discussion of Garage

consistency with the General Plan, the Planning Commission accurately states: “The goal of the

Transportation Element and its Objectives and Policies as related to Golden Gate Park in general

and the Music Concourse area in particular, call for the overall reduction in private vehicle

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use . . . .” Planning Commission Consistency Finding, p. 7. Although the Commission discusses

the Transportation Implementation Plan (TIP) as part of the overall Project, it failed to discuss

the impact of the Garage on the Policies of the Transportation Element of the General Plan. In

fact the whole analysis seemingly ignores the fact that the Garage is part of the Project.

110. For example, in addressing Transportation Element Objective 24 which calls for

the improvement of “the ambiance of the pedestrian environment,” the Commission’s analysis, in

its entirety, states: “[T]he Project would narrow roads, remove paved surface parking area, calm

(slow) traffic and re-landscape paved surface areas in the Music Concourse area resulting in an

improved ambiance of a more park-like setting for pedestrians.” Planning Commission

Consistency Finding, p. 12. The Commission did not discuss the impact on the pedestrian

environment of the Garage, its openings onto the historic Music Concourse, its increased traffic

flow in and around the Music Concourse, the destruction of the pedestrian tunnel at the South

West tunnel location, and the vehicle exit in the Music Concourse area. It discussed only the

ways in which the non-Garage related programs would improve the ambiance for pedestrians.

111. In discussing the other Transportation Elements, the Commission also found

consistency by discussing only the improvements and ignoring the Garage. In addressing

Transportation Element Objective 15, the Commission found that the project would “encourage

alternatives to the automobile and reduce traffic levels on residential streets that suffer from

excessive traffic” through traffic calming measures, signal timing, and other minor traffic

adjustments. Planning Commission Consistency Finding, p. 12. The Commission failed

however to discuss the impact of the creation of the Garage and the increase of parking

availability in the Music Concourse on traffic levels on nearby residential streets.

112. The Commission made similar erroneous findings throughout the transportation

consistency section. The Commission repeated ignored the impacts of the Garage and

concentrated on the transportation improvement measure being contemplated. The Commission

erroneously found the Garage consistent with the following General Plan objectives and policies:

1. T.E. Objective 23: Improve the city’s pedestrian circulation system to

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provide for efficient, pleasant, and safe movement.

2. T.E. Policy 23.6: Ensure convenient and safe pedestrian crossings by

minimizing the distance pedestrians must walk to cross a street.

3. U.D. Policy 1.4: Protect and promote large-scale landscaping and open

space that define districts and topography.

4. U.D. Objective 2: Conservation of resources that provide a sense of

nature, continuity with the past, and freedom from overcrowding.

5. U.D. Policy 4.1: Protect residential areas from noise, pollution, and

physical danger of excessive traffic.

6. T.E. Policy 18.5: Mitigate and reduce the impacts of automobile traffic in

and around parks and along shoreline recreation areas.

7. U.D. Policy 4.4: Design walkways and parking facilities to minimize

danger to pedestrians.

113. The Commission did not adequately analyze the Garage’s consistency with the

General Plan’s Transportation Element because it selectively discussed positive measures in the

Garage plan and did not measure the adverse effects of the Garage on transportation in the area.

San Francisco Planning Code Section 101.1

114. In addition, the Planning Commission erroneously found that the Garage is

consistent with Section 101.1 Priority planning policies. Section 101.1(b) of the San Francisco

Planning Code, under General Plan Consistency and Implementation, establishes eight priority

policies to be used to evaluate projects prior to approval. Contrary to the Commission’s finding

of consistency, the Garage is inconsistent with priority policies 2, 7, and 8.

115. Priority Policy 2 states: “that existing housing and neighborhood character be

conserved and protected in order to preserve the cultural and economic diversity of our

neighborhoods.” The project would introduce a parking garage into the park area for the first

time. Parking garages are one of the most predominant elements of urbanism and commercial

building plans. Garages are also dangerous criminal areas. The Music Concourse area will lose

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a large part of its romantic, pastoral, and historic character due to the noise, visual intrusion, and

increased exhaust exposure due to the dual garages. The construction of the garage will also strip

from the adjacent neighborhood a part of its quiet residential character.

116. Priority Policy 7 mandates “that landmarks and historic buildings be preserved.”

The project would permanently alter the Music Concourse (1894) by disrupting the peaceful

intimacy created by its spacial separation from the modern world. The garage project would

destroy the historic Southwest tunnel (1898) that connects the Music Concourse to the

Shakespeare Gardens. Garage proponents plan to replace the tunnel with an unsafe, unhealthy

walkway through the garage in which pedestrians would cross two lanes of garage traffic.

According to the EIR:

Removing the tunnel and eliminating the subterranean pathway wouldalter the spacial orientation and the circulation pathway between the MusicConcourse to the Shakespeare Garden. The underground pathwayestablishes a pedestrian link between two park features. The proposedalterations would appear to violate the Secretary [of the Interior’s]Standards for Rehabilitation 1, 2, and 5 and would diminish the integrityof Golden Gate Park and the Music Concourse.

Golden Gate Concourse Authority Projects EIR, p. 91. Also, the addition of portals into the

Garage from the Concourse, along with metal hand rails, metal and glass parking payment

booths, and new stairs and ramps would degrade the historic nature of the Concourse Area.

117. Policy 8 mandates “that our parks and open spaces ... be protected from

development.” The Garage project is a massive development project in Golden Gate Park. The

Garage will increase traffic, traffic noise, and automobile exhaust in the Music Concourse area.

The Garage is only partially underground as the upper level will open directly onto the Music

Concourse. It is disingenuous to claim that the elimination of 200 surface parking spots in the

Concourse Area is an improvement to the open space environment in light of the addition of two

four-hundred car garages to be located on either side of the Concourse.

118. On October 14, the Golden Gate Park Concourse Authority approved the lease

and finance plan, recommended parking fees, and approved the bike plan.

119. On October 16, the San Francisco Recreation and Park Commission adopted lease

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and finance plans, recommended parking fees, and adopted findings that the Garage is consistent

with the Golden Gate Park Master Plan.

120. On November 5, the Finance Committee of the Board of Supervisors

recommended a resolution to approve General Plan Consistency and related CEQA findings, a

resolution to approve a 35-year lease between the Authority and the MCCP, and an ordinance to

set parking fees.

121. On November 18, 2003, the Board of Supervisors adopted Resolution 738-03 to

approve General Plan Consistency and related CEQA findings, Resolution 740-03 to approve the

sale of revenue bonds by the ABAG Finance Authority for Non-Profit Corporations in the

amount of $60 million, and Resolution 737-03 to approve the lease between the Authority and

the MCCP, and completed its first reading of the parking fees ordinance, 262-03.

122. On November 25, 2003, the Board of Supervisors passed the parking fees

ordinance.

E. DUE PROCESS VIOLATIONS

123. Respondents have not fulfilled the requirements of due process throughout the

approval process for the Garage.

124. First, respondents have created a private organization, the MCCP, as a substitute

for the Authority, thereby subverting Proposition J’s explicit call for full public participation in

the design, construction and management of the Garage. Proposition J authorized the creation of

the Authority as a non-profit public benefit corporation to carry out the objectives of Proposition

J. Proposition J defined the Authority’s operational confines, specifically requiring the Authority

to adhere to public agency information disclosure and open-meeting procedures:

All meetings of the Authority’s board shall be called, noticed, held andconducted subject to the provisions of the Ralph M. Brown Act (Chapter 9of Part 1 of Division 2 of Title 5 of the California Government Code,Sections 54950 to 54962) and the San Francisco Sunshine Ordinance(Chapter 67 of the San Francisco Administrative Code).

All records of the Authority shall be deemed "public records" for purposesof the Public Records Act (California Government Code Section 6250 etseq.) and "public information" for purposes of the San Francisco SunshineOrdinance (Chapter 67 of the San Francisco Administrative Code). The

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Authority shall be subject to the disclosure requirements and proceduresmandated by the Public Records Act and Sunshine Ordinance.

Proposition J

The MCCP considers itself outside of the scope of these public information acts, as well as the

San Francisco Non-Profit Access Ordinance (S.F. Administrative Code Chapter 12L), because it

is not a public agency and because, according to a letter from the MCCP to petitioners dated

March 17, 2003, it allegedly does not receive public funds.

125. The MCCP, however, is the entity that will sign the lease to the Garage land,

conduct the construction activities, and then run the Garage for up to 35 years. The MCCP is the

lead entity for the Garage project yet it refuses to follow Proposition J’s requirements for public

disclosure and open meetings. According to Proposition J, the voters did not approve closed

door meetings and private decision making concerning the future of the Music Concourse.

Respondents have denied due process to all the citizens involved in the public participation

procedures of the Garage approval.

126. Second, respondents failed to give petitioners adequate time to review the

approximately 200-page package regarding lease and finance documents before the meeting of

the Board of Supervisor’s Finance Committee on November 5, 2003. The package contained

voluminous, complicated financial information and a highly complex contract lease agreement.

Respondents released the document a mere 4 hours before the meeting, an inadequate amount of

time for the public to review the materials and prepare thoughtful, helpful comments on the

agreement.

127. Respondents failed to provide the public with adequate time to review

complicated issues at other times as well. For example, on July 17, 2003, the Planning

Commission unanimously voted against the certification of the EIR, tabling discussion of

mitigation measures that might cure significant impacts until July 31. Then, on July 23, 2003, at

approximately 4 pm, the planning department released a letter that altered the scope of the

projects being considered, removing the Phase II underground throughway. At that time, the

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department also released the resolutions prepared for approval of the EIR.

128. The following day, on July 24, a week before the scheduled meeting, the Planning

Commission approved the revised Project. The public did not get a chance to review the DEIR

with the substantial revisions in mind. In fact, to fully understand the revisions to the DEIR in

light of the planning department letter, one would have to disregard many pages of the DEIR.

Respondents did not give the public adequate time to alter and analyze the DEIR, in violation of

petitioners’ due process rights.

FIRST CAUSE OF ACTION(Violation of Proposition J)

(Alleged by all Petitioners against all Respondents andReal Parties In Interest)

129. The paragraphs set forth above are realleged and incorporated herein by reference.

130. Respondents have violated Proposition J by:

131. Allowing cars and buses to remain in the Concourse by leaving Academy Drive

and Tea Garden Drive open to traffic rather than creating a pedestrian oasis;

132. Attracting more traffic to the immediate Concourse area rather than reducing the

impact of the automobile on the Park;

133. Introducing traffic impacts, including garage noise, pollution, and unsightliness, to

the Concourse elevation through the wide open portals, rather than decrease the impact of the

automobile on the Park;

134. Creating a dangerous vehicular entrance and exit point inside the Concourse,

contrary to Proposition J’s express requirement for entrances to be located outside the Park and

contrary to Proposition J’s mandate to reduce the impacts of the automobile on the Park;

135. Creating conflicts between pedestrians and automobiles in the Southwest area of

the Concourse, specifically in the Southwest pedestrian walkway through the Garage in place of

the historic tunnel, contrary to Proposition J’s explicit requirement that the Project reduce

conflicts between pedestrians and automobiles;

136. Spending all available funds on the Garage contrary to Proposition J’s transit-first

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policies;

137. Substituting the MCCP for the Authority as lead entity contrary to Proposition J’s

provisions creating the Authority and setting forth the Authority’s operational guidelines;

138. Creating a leasehold interest in the Garage for 35 years contrary to Proposition J’s

provision calling for a release of the Garage at the end of construction;

139. Spending State Proposition 40 and Proposition 12 money on environmental

review contrary to Proposition J’s express provisions requiring all expenses to be paid from

private donations;

140. Reserving $7.5 million more from Proposition 40 to pay for Proposition J surface

improvements, contrary to Proposition J’s express provisions requiring all expenses to be paid

from private donations;

141. Failing to raise adequate funds through private donations and resorting to an

ABAG bond issuance contrary to Proposition J’s express provisions requiring all expenses to be

paid from private donations;

142. Failing to provide to the City revenues from the operation of the Garage upon

completion because the money will be used to pay down the bond debt, contrary to Proposition

J’s requirement that all revenue be used to improve parks and related City programs;

143. Raising public funds despite Proposition J’s mandate that the Authority construct

the Garage in a manner consistent with private funding procedures;

144. Circumventing public disclosure by placing MCCP in charge of the Garage

construction and operation, contrary to Proposition J’s sunshine adherence provision.

SECOND CAUSE OF ACTION(Failure to Prepare Adequate EIR, in

Violation of the California Environmental Quality Act,Public Resources Code section 21000, et seq.)

(Alleged by Petitioners against all Respondents andReal Parties In Interest)


146. Respondents proceeded in excess of their jurisdiction and abused their discretion

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in approving the Garage project by certifying the EIR and approving the lease and bond

agreements.

147. Respondents’ approvals, certifications, and notices for the Garage project violated

CEQA, Public Resources Code sections 21000, et seq., due to the following deficiencies among

others:

1. Improper separation of the de Young Museum, Academy of Sciences, and

Garage projects’ environmental reviews;

2. Lack of cumulative impact analysis for the de Young Museum, Academy

of Sciences, and Garage projects in the Garage EIR in terms of:

(1) Traffic congestion;

(2) Pedestrian circulation and pedestrian access from the south;

(3) Construction impacts; and

(4) Parking;

3. Inadequate analysis of alternatives to Garage project in terms of:

(1) No analysis of “No Garage” alternative;

(2) No analysis of alternative designs for the Garage; and

(3) No alternative locations analyzed;

4. Inadequate analysis of visual quality impacts of the Garage project:

(1) Lack of discussion of four emergency exit pits in the Concourse;

(2) Lack of adequate analysis of the cumulative effect of ventilation

shafts from the Garage, Garage entry doors and pay gate within the Concourse, and the vehicular

entrance inside the Concourse area;

5. Inadequate analysis of historic resources in terms of:

(1) The elimination of the Southwest pedestrian tunnel;

(2) The reconstruction and miniaturization of other two tunnels; and

(3) The effect of the Garage on Golden Gate Park as a historic

resource in general.

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6. Inadequate analysis of pedestrian circulation impacts in terms of:

(1) The elimination of the Southwest tunnel; and

(2) The construction of the Concourse vehicular entrance;

7. Inadequate traffic evaluation in terms of:

(1) Artificially low baseline based on the markedly low, post-9/11

museum visitor period;

(2) Lack of analysis of the traffic impacts of the loading and unloading

zones in the Concourse itself;

(3) Increased traffic in the Ninth Street corridor;

(4) Impacts of intra-park entrance/exit on Martin Luther King Drive,

Ninth Avenue, and consequential impact on Muni transit.

148. For the foregoing reasons, the City’s purported approval of the Project and

certification of the Garage EIR violated CEQA. Consequently, such approvals are ultra vires and

must be set aside.

THIRD CAUSE OF ACTION(Failure to Assure Consistency with City General Plan and

City Planning Code Section 101.1)



150. Respondents’ findings that the proposed Project complies with the San Francisco

General Plan and City Planning Code Section 101.1 are arbitrary and capricious and an abuse of

discretion, contrary to the following General Plan requirements:

1. Recreation and Open Space Policy 2.2;

2. Recreation and Open Space Policy 2.4;

3. Urban Design Policy 2.2;



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7. Urban Design Objective 2;

8. Transportation Element Policy 23.6;

9. Transportation Element Objective 24;



12. Transportation Element Objective 18.5;

13. Section 101.1 Priority Policy 2;

14. Section 101.1 Priority Policy 7; and

15. Section 101.1 Priority Policy 8.

151. The Project does not conform to the General Plan and contravenes the planning

priorities established by Section 101.1.

FOURTH CAUSE OF ACTION(Violation of Due Process as defined by the 14 Amendment of the U.S. Constitution andth

the California Constitution)



153. The procedures utilized by the respondents in approving the Project violated

petitioners’ due process rights as guaranteed by the 14 Amendment of the U.S. Constitution andth

the California Constitution.

FIFTH CAUSE OF ACTION(Entitlement to Attorneys’ Fees under Code of Civil Procedure

Section 1021.5 and Government Code Section 800)


154. The paragraphs set forth above are realleged and incorporated herein by this

reference.

155. Petitioners are entitled to recover reasonable attorneys’ fees under each of their

causes of action herein pursuant to Code of Civil Procedure section 1021.5 and Government

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Code section 800, in that the respondents’ approvals herein challenged are arbitrary and

capricious, and the successful disposition of this Verified Petition for Writ of Mandate and

Complaint for Declaratory and Injunctive Relief and Attorneys’ Fees will result in the

enforcement of an important right affecting the public interest, a significant benefit will be

conferred upon the general public and a large class of persons arising from enforcement of state

laws and regulations protecting the quantity and quality of the State’s waters and associated

public trust resources, and the necessity and financial burden of private enforcement are such as

to make the award appropriate.

COMMON CHARGING ALLEGATIONS



157. Petitioners have no plain, speedy and adequate remedy in the ordinary course of

law in that, unless this Court issues its writ of mandate or injunctive relief (1) vacating

respondents’ approvals regarding the construction of the Garage, (2) requiring respondents to

comply with CEQA, and (3) directing respondents to determine said Project’s consistency with

the City General Plan and to conform said Project therewith, respondents’ approvals challenged

herein would violate applicable statutory and common law. No monetary damages or other legal

remedy could adequately compensate petitioners for the harm to essential environmental reviews,

orderly land planning processes, and environmental quality, including petitioners’ use of Golden

Gate Park and its multitude of resources, threatened by respondents’ approvals.

158. Petitioners have exhausted all available administrative remedies by presenting oral

and written objections to respondents demonstrating that the Garage project would violate

applicable statutory and constitutional requirements, and harm petitioners and the public, in the

respects alleged hereinabove. Respondents have ignored or dismissed petitioners’ objections

such that petitioners have no remaining remedy for respondents’ unlawful conduct except this

Court’s review.

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159. An actual controversy exists between petitioners and the other parties. Petitioners

contend that respondents acted in violation of the statutory and constitutional requirements as

alleged hereinabove, and must therefore vacate and set aside their approvals of the Garage

project. Petitioners are informed and believe, and thereon allege, that the other parties dispute

these contentions. A judicial resolution of this controversy is therefore necessary and

appropriate.

160. Respondents are threatening to proceed with implementation of this Project by

allowing its construction without first complying with the foregoing statutory and constitutional

requirements. The threatened alterations to the historic Music Concourse would irreparably harm

petitioners and the public in the respects alleged above. Accordingly, a temporary restraining

order and preliminary and permanent injunctions should issue restraining respondents from

proceeding with their plans without compliance with applicable law.

PRAYER FOR RELIEF

WHEREFORE, petitioners pray for relief as follows:

1. On the First Cause of Action, all petitioners seek this Court’s alternative

and peremptory writs of mandate, declaratory judgment, and preliminary and permanent

injunctions setting aside and enjoining respondents’ approvals purporting to permit the

construction of the Garage on the grounds that such approvals violate Proposition J;

2. On the Second Cause of Action, all petitioners seek this Court’s

alternative and peremptory writs of mandate, declaratory judgment, and preliminary and

permanent injunctions setting aside and enjoining respondents’ approvals purporting to permit

the construction of the GGPCA Garage on the grounds that such approvals violate the California

Environmental Quality Act;

3. On the Third Cause of Action, all petitioners seek this Court’s alternative


injunctions setting aside and restraining respondents’ approvals purporting to permit the

construction of the GGPCA Garage on the grounds that such approvals violate the General Plan

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and Section 101.1 Priority Principles.

4. On the Fourth Cause of Action, all petitioners seek this Court’s alternative


injunctions setting aside and restraining respondents’ approvals on the grounds they violate

petitioners’ due process rights.

5. On the Fifth Cause of Action, all petitioners seek their reasonable

attorneys’ fees;

6. For costs of suit herein; and

7. For such other and further relief as the Court deems just and proper.

Dated: December 18, 2003 Respectfully submitted,

STEPHAN C. VOLKERAttorney for Petitioners Save Golden Gate Park, etal.

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VERIFICATION

I am the attorney for petitioners SAVE GOLDEN GATE PARK, et al. in this action.

Petitioners are absent from the County of Alameda, in which I maintain my office. I have read

the foregoing Petition and Complaint. I am informed and believe, and on that basis allege, that

the matters therein are true.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this December 18, 2003, in Oakland, Alameda County, California.

STEPHAN C. VOLKER

Documents

STEPHAN C. VOLKER (CSB #63093) GRETCHEN E. … a.h. harris ... save golden gate park, et al. ... verified petition for writ of mandate and complaint for declaratory and