Preview
Jessica L. Blome (Cal Bar. No. 314898)
1
Susann M. Bradford (Cal Bar. No. 341338)
2 GREENFIRE LAW, PC
2748 Adeline Street, Suite A
3 Berkeley CA 94703
Ph/Fax: (510) 900-9502
4 Email: jblome@greenfirelaw.com
sbradford@greenfirelaw.com
5
6 Attorneys for Petitioners
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 FOR THE COUNTY OF SAN MATEO
9
Case No.: ______________
10 FRIENDS OF WATERDOG OPEN SPACE,
DENIZ BOLBOL, and JOSEPH P. CUVIELLO,
11 VERIFIED PETITION FOR WRIT OF
Plaintiffs and Petitioners,
12 MANDATE [CEQA], COMPLAINT FOR
v. DECLARATORY AND INJUNCTIVE
13 RELIEF
CITY OF BELMONT, BRIGITTE SHEARER,
14 in her official capacity as Director of Belmont Code Civ. Proc., §§ 1085, 1094.5 (Writ of
Parks and Recreation, and DOES 1-10, agents or Mandate); Pub. Res. Code, §§ 21000, et seq.
15 Officers acting on behalf of the City of Belmont, (CEQA); Code of Civ. Proc., § 1060
(declaratory judgment); Code of Civ. Proc.,
Defendants and Respondents. § 526 (injunction); Code of Civ. Proc., § 526a
16
(taxpayer waste)
17
Complaint Filed: April 15, 2024
18
19
20
21
22
23
24
25
26
27
28 1
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
1 This action alleges that the City of Belmont violated the California Environmental Quality Act
2 (CEQA), California Public Resources Code, section 21000, et seq., by adopting a new Parks,
3 Recreation, and Open Space Master Plan (PROS Plan) and a new Open Space Management Plan on
4 the basis of an Environmental Impact Report Addendum (EIR Addendum) to the 2035 General Plan
5 EIR rather than conducting a proper environmental review, as required by CEQA. Both the PROS
6 Plan and the Open Space Management Plan authorize actions that may have significant impacts on
7 protected species and natural resources that are not analyzed in the EIR Addendum, in the 2035
8 General Plan EIR, or in any other document. In addition, Petitioners also allege that the City’s failure
9 to maintain trails, prevent unauthorized trails and modifications, or establish adequate trail use
10 restrictions within Waterdog Lake Open Space has caused damage to and degraded city property and
11 leased lands in violation of California’s taxpayer waste law, Code of Civil Procedure section 526a.
12 Petitioners further allege that the City has failed to comply with the Lake and Streambed Alteration
13 Program, Fish and Game Code section 1602, by allowing unpermitted construction and modification
14 of stream crossings to alter streambeds and streambanks. Through this lawsuit, petitioners seek a writ
15 and injunction to compel the City to comply with its legal obligations under CEQA and under the
16 Lake and Streambed Alteration Program and the California Endangered Species Act, and to require
17 the City to take action sufficient to provide adequate maintenance and enforcement to prevent
18 unauthorized trail construction and use from further damaging and degrading City property and
19 leased lands.
20 In support of this petition, petitioners allege as follows:
21 JURISDICTION AND VENUE
22 1. This Court has jurisdiction over this action pursuant to Code of Civil Procedure,
23 sections 1085 (traditional writ of mandate), 1094.5 (peremptory writ of mandate), 1060 (declaratory
24 judgment), 526 (injunction), and 410.10 (equitable powers of court), and Public Resources Code,
25 sections 21168.5 and 21168.9 (CEQA). This Court also has authority to award attorney’s fees and
26 costs under Code of Civil Procedure section 1021.5 where, as here, Petitioners seek to enforce
27 important rights affecting the public interest.
28 2
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 2. This Court also has jurisdiction pursuant to Code of Civil Procedure, section 526a,
2 authorizing taxpayers to undertake actions against officers or agents of local agencies to prevent
3 unlawful expenditures or waste of city property.
4 3. Venue is proper in this Court pursuant to Code of Civil Procedure, section 394,
5 because defendants and respondent is a city located in San Mateo County and employees or agents
6 thereof.
7 4. The petition initiating this action was timely filed within 30 days after respondent
8 issued a Notice of Determination in accordance with Public Resources Code, section 21167,
9 subdivision (b).
10 5. On April 12, 2024, petitioners complied with Public Resources Code, section 21167.5
11 by serving a written notice on respondent regarding the petitioner’s commencement of this action. A
12 true and correct copy of the notice is attached hereto as Exhibit A.
13 6. Petitioners are sending a copy of this Petition and Complaint to the California
14 Attorney General concurrently with filing, thereby complying with the requirements of Public
15 Resources Code section 21167.7 and Code of Civil Procedure section 388.
16 PARTIES
17 7. Petitioner Friends of Waterdog Open Space (FWOS) is an unincorporated association
18 made up of individuals who live, work, and recreate in the City of Belmont’s open spaces, parks, and
19 neighborhoods, including Waterdog Lake and Open Space, that operates as a project of Humanity for
20 Education, a 501(c)3 non-profit organization.
21 8. Plaintiff and Petitioner Deniz Bolbol is an individual citizen who resides in and pays
22 taxes in Belmont, California. Petitioner Bolbol has long advocated for the protection of Waterdog
23 Lake and Open Space, which she visits frequently for purposes of recreation, observing wildlife and
24 native plants, connecting with and protecting the natural environment, bird watching, and the
25 aesthetic enjoyment of nature.
26 9. Plaintiff and Petitioner Joseph P. Cuviello is an individual citizen who resides in and
27 pays taxes in Belmont, California. Petitioner Cuviello has long advocated for the protection of
28 3
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 Waterdog Lake and Open Space, which he visits frequently for purposes of recreation, observing
2 wildlife and native plants, bird watching, and the aesthetic enjoyment of nature.
3 10. Defendant and Respondent City of Belmont is an incorporated city located in San
4 Mateo County, California. The City was the lead agency responsible for preparing the EIR
5 Addendum, as required by CEQA. The City is a “local agency” within the meaning of the Taxpayer
6 Waste Law, Code of Civil Procedure, section 526a, subdivision (d)(1).
7 11. Defendant Brigitte Shearer is the Director of the City of Belmont Parks and Recreation
8 Department, which oversees the management of the City’s parks and open spaces, including
9 Waterdog Lake and Open Space.
10 12. Defendants DOES 1-10, are the officer or agents of the City that are primarily
11 responsible for the property damage caused by the City’s inadequate management of open space trails
12 and natural resources.
13 GENERAL ALLEGATIONS OF FACT
14
A. Introduction
15 13. Waterdog Lake and Open Space (or “Waterdog”) is one of the few remaining natural
16 areas within the City of Belmont, and serves as important wildlife habitat and as a vital wildlife
17 corridor. Waterdog consists primarily of California’s oak woodlands which have the richest wildlife
18 species abundance of any habitat in the state, yet these habitats are increasingly rare and are
19 threatened by human activity.
20 14. Waterdog’s sensitive native plant communities, wildlife habitat, soils, waterways, and
21 trail system are threatened by the City’s failure to manage the open space in a manner that prevents
22 significant degradation of the property and its natural resources.
23 15. Petitioners have repeatedly urged the City to comply with CEQA, and to protect
24 Waterdog’s trails and resources, as well as user safety, by closing and preventing unauthorized trails,
25 by conducting CEQA analyses of new and proposed trails and trail maintenance activities, and by
26 establishing and enforcing effective trail use restrictions. Petitioners submitted a petition and notice of
27
28 4
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 intent to sue the City over the City’s failures in June 2023.
2 16. Petitioners stayed litigation in 2023 because the City announced that it would conduct
3 a CEQA review of the PROS Plan and Open Space Management Plan. Petitioners were hopeful that
4 the City’s CEQA process would address their concerns by evaluating the ongoing resource damage in
5 Waterdog and evaluating management actions and mitigation to address this issue. However, instead
6 of examining the potentially significant impacts of ongoing activities and proposed management
7 actions, the City prepared an inadequate and cursory EIR Addendum to the City’s 2017 General Plan
8 EIR that fails as an informational document.
9 17. The EIR Addendum is legally inadequate because the PROS Plan and Open Space
10 Management Plan contain substantial new information and recommend specific actions that may have
11 significant impacts that were not evaluated in the 2017 EIR, and because the EIR Addendum
12 disregards project changes, changed conditions, and evidence that impacts are currently and will be
13 more severe and significant than previously anticipated in 2017.
14 18. In addition, the 2017 EIR, with regard to Biological Resources states, “No new field
15 studies or other research were conducted for the preparation of this EIR, as existing resources
16 contained information on all pertinent aspects of biological resources in the Planning Area in an
17 appropriate level of detail for a program-level environmental assessment.” (2017 EIR p. 4.3-30.)
18 However, the “existing resources” cited in the 2017 EIR do not include any assessment of the impact
19 of trails and human activities on Waterdog’s habitat and biological resources. Prior planning
20 documents were published years before the trail network was built. In total disregard for CEQA, the
21 City has never performed any environmental study of the Waterdog Open Space; there was no EIR
22 prepared when the 1992 Parks and Open Space Master Plan was adopted, no EIR when the 1998 Trail
23 Plan was approved, no EIR when the 2014 Lake Loop Trail was approved to be constructed in a
24 riparian area. The public has thus been deprived of any means by which to determine the adequacy of
25 the 2017 General Plan EIR with respect to the Waterdog Space trail system. The EIR Addendum at
26 hand again fails to conduct adequate field studies or analysis to inform the public and decision-
27 makers of the potentially significant impacts of the PROS Plan and OSMP.
28 5
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 19. Because the EIR Addendum is inadequate as a CEQA document, the City’s approval
2 of the PROS Plan and Open Space Management Plan must be rescinded.
3 20. In the meantime, the City has failed to maintain trails or to enforce existing open space
4 management rules at Waterdog, or to prevent unauthorized trails and streambed modifications from
5 causing ongoing damage to City owned and managed open space resources, and failing to adhere to
6 the City own General Plan which requires the City to take actions to protect Waterdog as a valuable
7 wildlife corridor in order to increase wildlife population diversity.
8 B. Procedural Background.
9 21. In June 2022, the City of Belmont released the Final Draft Parks, Recreation, and
10 Open Space Master Plan (Draft PROS Plan), which included the Belmont Open Space Management
11 Plan (OSMP) as Appendix G.
12 22. The Draft PROS Plan was placed on the Belmont City Council Meeting agenda to be
13 considered for review and adoption on July 12, 2022. The City had not conducted any CEQA review
14 to evaluate the environmental impacts of the Draft PROS Plan and OSMP.
15 23. On July 12, 2022, Petitioner Bolbol submitted public comments urging the City to
16 comply with CEQA.
17 24. On June 22, 2023, in response to the ongoing proliferation of unauthorized trails and
18 un-remediated trail damage in Waterdog, petitioners submitted a Petition and Notice of intent to sue
19 over the City of Belmont’s failure to enforce legal protections of natural resources in the Waterdog
20 Open Space.
21 25. On October 2, 2023, petitioners were informed by City’s counsel that the Open Space
22 Management Plan was being reviewed under CEQA. In response, petitioners paused their planned
23 litigation.
24 26. On February 1-2, 2024, the City’s Park and Open Space Commission (PROS
25 Commission) released the Final Draft PROS Plan and EIR Addendum.
26 27. On February 7, 2024, the PROS Commission approved a Motion to Recommend
27 PROS Plan and EIR Addendum to the Belmont City Council for approval.
28 6
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 28. The PROS Plan and OSMP were placed on the Belmont City Council Meeting agenda
2 to be considered for adoption on March 12, 2024,
3 29. Petitioners submitted timely public comments objecting to the City’s decision to
4 prepare an EIR Addendum, identifying potentially significant impacts of the PROS Plan and OSMP,
5 and explaining why an EIR Addendum was inadequate. Petitioners’ comments also incorporated
6 expert comments addressing impacts on mountain lions and petitioners’ June 2023 letter and
7 supporting documents, including an independent environmental assessment of trail activities
8 impacting biological resources.
9 30. On March 12, 2024, Belmont City Council adopted the 2024 PROS Plan and the EIR
10 Addendum.
11 31. The City has no administrative appeals process in place for reviewing City Council
12 decisions.
13 32. On March 15, 2024, the City filed a Notice of Determination (NOD) with the County
14 Clerk of San Mateo County.
15 C. Environmental Setting.
16 33. Waterdog Lake Open Space is a 293-acre undeveloped area located in Belmont,
17 California that is designated and managed as open space by the City. The open space is managed by
18 the City Parks and Recreation Department, with guidance from the PROS Commission, which serves
19 as an advisory board.
20 34. Parts of Waterdog are situated on a tract of land that is leased by the City from Notre
21 Dame de Namur University (NDNU). The City entered an initial 50-year lease in 1965, which was
22 renewed in 2011. The leased area consists of about 50 acres and includes Waterdog Lake, sections of
23 Belmont Creek, Lake Road, trails, a sewer line, and open space. While the rental cost is a mere $100
24 per year, the value to the City in securing the Belmont Creek watershed, preserving the valley’s rich
25 biodiversity, and providing recreational and aesthetic enjoyment for its citizens is immense.
26 35. The Waterdog lease requires the City to maintain the area as a green belt, and to
27 maintain, preserve, and operate the dam for flood control and for “recreational activities conducted
28 7
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 and authorized by the City of Belmont.” In addition, the agreement provides that the “City shall, at its
2 sole cost” maintain the dam and comply with all laws or regulations “pertaining to the maintenance
3 and operation of the [dam and lake] and the use of the premises for recreational purposes.” (City of
4 Belmont City Council, Resolution No. 2722 (May 3, 1965); City of Belmont City Council, Resolution
5 Authorizing the Renewal of Lease with Notre Dame de Namur University for the Waterdog Lake
6 Open Space Area (June 14, 2011).
7 36. Another tract of Waterdog open space land, adjacent to the leased lands, is known as
8 the Brooks Preserve, which was donated to the City by John Brooks on the condition that it be
9 “maintained in perpetuity as an unspoiled wild area or ‘green belt’ to preserve the trees and natural
10 environment” (Letter from HT Stearns, executor, to F. Holland, Treasurer for the City of Belmont,
11 Nov. 29, 1977.) In accepting this land grant, the City “guarantee[d] that the property would be
12 retained in perpetuity as open space with perhaps trails through it but with low use as at the present
13 time.” (City Council Minutes, Nov. 28, 1977.) However, an independent environmental assessment
14 found that at least two of the trails in the Brooks Preserve “violate the terms of the land donation” by
15 causing significant degradation of natural resources.1
16 37. The geography of Waterdog is characterized by steeply sloping hillsides and canyons
17 that are mostly bordered by residential development on the ridges above. The steep slopes (mostly
18 between 30% and 45%) are susceptible to debris flows (landslides), slumping, and soil creep.
19 38. Waterdog Lake is a reservoir situated at the northern end of Waterdog within the
20 Belmont Creek drainage. The lake is fed by Belmont Creek and several small tributaries and
21 ephemeral drainages that flow from the steep hillsides of Waterdog. Belmont Creek continues below
22 the lake and eventually flows into San Francisco Bay.
23 39. Approximately 8.5 miles of recreational trails have been constructed in Waterdog lake,
24 including multi-use trails and narrow single track trails suitable for hiking. Despite rules prohibiting
25
1
26 See Scott Cashen, Environmental Assessment of Recreational Trails in John S. Brooks Memorial
Open Space Preserve, Water Dog Lake Park, and Hidden Canyon Open Space, p.12 (March 29, 2021); this
27 document was attached to petitioners’ public comments and is in the administrative record.
28 8
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 unauthorized trails, nearly 2 miles of unauthorized trails have been constructed or caused, largely by
2 off trail mountain bike use, since 2017, when trail maps were published in the Belmont General Plan
3 and General Plan EIR.
4 40. Many of the Waterdog trails cut through streambeds and riparian areas; including an
5 unauthorized trail that follows Belmont Creek, cutting back and forth across the creek multiple times,
6 and disrupting previously intact riparian habitat and sensitive biological communities.
7 41. Waterdog is located on the San Francisco Peninsula, which is central to one of 36
8 global biodiversity hotspots, which are areas distinguished by exceptional levels of biodiversity but
9 also significantly threatened by human habitation and development.
10 42. The Conservation Lands Network, a regional conservation strategy for the San
11 Francisco Bay Area, has identified approximately 91% of Waterdog as “areas essential to
12 conservation goals.”
13 43. Waterdog contains a number of sensitive natural communities. The 2017 Belmont
14 General Plan, which is known as the 2035 General Plan, identifies four sensitive plant communities
15 within Waterdog, including blue oak woodland, coastal oak woodland, valley foothill riparian, and
16 chamise-redshank chaparral. The more recent 2022 San Mateo County Fine Scale Vegetation Map
17 identifies three sensitive biological communities within Waterdog, including California bay
18 woodlands, arroyo willow riparian woodlands, and California buckeye groves riparian woodlands.
19 44. Notably, oak woodlands offer the richest wildlife species abundance of any habitat in
20 California, with over 330 species of birds, mammals, reptiles, and amphibians depending on them at
21 some stage in their life cycle. In addition, more than 225 species of birds, mammals, reptiles, and
22 amphibians depend on California’s riparian habitats, while California’s chaparral plant communities
23 support exceptional biodiversity of bird, mammal, and insect communities aligning with shrub cover.
24 45. Several special-status species, as designated as by the California Department of Fish
25 and Wildlife (CDFW), are known to be present or likely to occur within Waterdog. Rare and
26 endangered plant species that have been documented within Waterdog include western leatherwood
27 (Dirca occidentalis), Franciscan onion (Allium peninsulare var. franciscanum), San Francisco
28 9
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 collinsia (Collinsia multicolor), and arcuate bush-mallow (Malacothamnus arcuatus).
2 46. Several special-status animal species are also documented as present or having the
3 potential to occur within Waterdog, including the following: San Francisco dusky-footed woodrat
4 (Neotoma fuscipes annectens), Northern harrier (Circus hudsonius), and Yellow warbler (Setophaga
5 petechia), which are California Species of Special Concern;2 Cooper’s hawk (Accipiter cooperii),
6 Sharp-shinned hawk (Accipiter striatus), and Merlin (Falco columbarius), which are CDFW Watch
7 List Species; White-tailed kite (Elanus leucurus), which is a fully protected species;3 and Oak
8 titmouse (Baeolophus inornatus), which has been identified by the U.S. Fish and Wildlife Service as
9 a Bird of Conservation Concern.
10 47. Mountain lions (Puma concolor) have also been documented within and around
11 Waterdog on several occasions.4 Lions in this region belong to the Central Coast Northern (CC-N)
12 population, which is protected as a candidate species under the California Endangered Species Act
13 (CESA). Mountain lions are also a “specially protected mammal” pursuant to the California Wildlife
14 Protection Act (CWPA), which prohibits capture and trade in mountain lions and their parts and
15 prioritizes the protection of habitat corridors to maintain the genetic integrity of wildlife populations.
16 48. Waterdog may also provide habitat for protected bumble bee species that were recently
17 listed as candidate species under CESA. Western Bumblebee and Crotch’s Bumblebee have the
18 potential to occur within this area but have not been surveyed for.
19 49. Additionally, the U.S. Fish & Wildlife Service (USFWS) online database, identifies
20 the following federally protected threatened and endangered species as “potentially affected by
21 activities in this location”: Salt Marsh Harvest Mouse (Reithrodontomys raviventris); California Least
22 Tern (Sterna antillarum browni); California Ridgeway’s Rail (Rallus obsoletus obsoletus); Marbled
23 Murrelet (Brachyramphus marmoratus); Western Snowy Plover (Charadrius nivosus nivosus);
24
2
25 See CDFW, “Species of Special Concern,” https://wildlife.ca.gov/Conservation/SSC.
3
See CDFW, “Fully Protected Animals,” https://wildlife.ca.gov/Conservation/Fully-Protected.
26
4
Petitioners have also compiled and shared with the City a record off documented sightings of mountain
27 lions directly around Waterdog.
28 10
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 Northwestern Pond Turtle (Actinemys marmorata); San Francisco Garter Snake (Thamnophis sirtalis
2 tetrataenia); California Red-legged frog (Rana draytonii); California Tiger Salamander (Ambystoma
3 californiense); Foothill Yellow-legged Frog (Rana boylii); Mission Blue Butterfly (Icaricia icarioides
4 missionensis); Monarch Butterfly (Danaus plexippus); Fountain Thistle (Cirsium fontinale var.
5 fontinales); Marin Dwarf-flax (Hesperolinon congestum); San Mateo Thornmint (Acanthomintha
6 obovata ssp. duttonii); San Mateo Woolly Sunflower (Eriophyllum latilobum); and White-rayed
7 Pentachaeta (Pentachaeta bellidiflora).5
8 50. Bats have also been observed in and around Waterdog, which may include sensitive
9 species, such as Hoary bat (Lasiurus cinereus), listed as a medium-priority imperiled species by the
10 Western Bat Working Group, and other bat species, such as Pallid bat (Antrozous pallidus), which is
11 ranked as a vulnerable species in California. Recent studies indicate that bats may be impacted by
12 high frequency noise emitted by e-bikes when trails are located near bat roosts.
13 D. Damage to City Property and Natural Resources.
14 51. The City has failed to adequately maintain Waterdog trails and has failed to prevent a
15 proliferation of unauthorized trails and trail modifications from destabilizing soils and impairing
16 sensitive biological resources, wetlands, streambanks and streambeds, and water quality.
17 52. The proliferation of unauthorized trails within Waterdog has been a growing problem
18 for several years, as shortcuts and trail features created by mountain bikers have expanded and
19 developed into major new trails. Many of these trails intersect riparian areas, cut across streambeds,
20 or pass through areas of ponding water and seeps. Modifications include mountain biking features
21 like jumps, banked curves, and rolling dips, as well as stream crossings and causeways through wet
22 areas.
23 53. Several unauthorized trails cut through sensitive plant communities and riparian areas
24 that provide important habitat for numerous species, causing habitat fragmentation, increasing
25 barriers and risks to wildlife, and allowing invasive plants to take root in newly disturbed soils.
26
5
See U.S. Fish and Wildlife Service, Information for Planning and Consultation,
27 https://ipac.ecosphere.fws.gov/location/U2UN5RXRE5BKJFRNOE4CMBPXHA/resources.
28 11
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 54. Trails cut into steep hillsides have also destabilized soils and caused severe erosion
2 and gully formation. Impacts from these trails include significant erosion problems, potential impacts
3 to sensitive species, and water quality impairment. Expensive dredging has been necessary to mitigate
4 sedimentation of Waterdog Lake and area streams due to severe soil erosion and trail collapse,
5 exacerbated by extreme rain events, or atmospheric rivers, associated with climate change. Extreme
6 erosion in January 2023 required emergency dredging to excavate culverts in the Hidden Canyon area
7 near the south end of Waterdog.
8 55. Poorly planned trails and excessive numbers of stream crossings has also damaged
9 streambanks and streambeds, and impaired water quality as a result of increased sedimentation.
10 Debris from vegetation cutting to increase clearance for bicycles has also been scattered in creeks.
11 Improper disposal of woody debris impairs waterways and increases risk of sudden oak death, which
12 is spread by water-borne pathogens.
13 56. Increased trail density, trail widening, and spidering has increased soil disturbance and
14 compaction, eliminated surface vegetation and cover for wildlife, and increased risk of invasive
15 species.
16 57. Increased trail density also impairs wildlife habitat and wildlife travel corridors by
17 increasing human presence within the affected areas. Many wildlife species, including mountain
18 lions, are sensitive to human noise and activity, and avoid areas that are frequented by humans.
19 58. The City has failed to take action to prevent unauthorized trails in sensitive habitat,
20 and has failed to close or decommission these trails, instead sanctioning their continued use. By
21 allowing unauthorized construction and modification of stream crossings, and allowing wet crossings
22 through streams, the City has contributed to unlawful streambed alterations and sediment pollution in
23 violation of Belmont City Code, section 16-24, which makes it unlawful to discharge pollutants into
24 waterways, and in violation of Fish and Game Code, section 1602, the Lake and Streambed Alteration
25 program. These actions and inactions also disregard conditions of the Municipal Regional Stormwater
26 NPDES Permit for the San Francisco Bay Region (MRP), which requires the City to “effectively
27 prohibit the discharge of non-stormwater (materials other than stormwater) into storm drain systems
28 12
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 and watercourses.” (San Francisco Bay Regional Water Quality Control Board, Order No. R2-2022-
2 0018, section A1.)
3 59. The City has also allowed Waterdog trails to be used at dusk and after dark, including
4 for night biking, increasing risk of harm to nocturnal species, including protected species, that are
5 active at dusk and may use trails. For example, mountain lions are typically active at dusk and dawn,
6 making conflicts most likely during these times, which could lead to collisions or injury, or cause a
7 lion being injured, hunted, or killed; or cause lions to be flushed from trails by human pursuit, or
8 force lions to avoid Waterdog and cross roadways where they are more likely to be killed.
9 60. The City’s much-touted volunteer program has also caused damage to natural
10 resources as volunteers with inadequate training have been encouraged to repair trails, including
11 unpermitted work on stream crossings in wet riparian areas. On some trails, volunteers have
12 constructed new mountain biking features, like jumps and banked curves, instead of repairing trails.
13 There is also no evidence that surveys were conducted to identify sensitive species or assess the need
14 for mitigation to protect rare plants, animal dens, and nesting or roosting sites, or that permits were
15 obtained prior to these activities.
16 61. The City’s failure to maintain and repair deteriorating trails, failure to ensure that new
17 trails are evaluated to screen for impacts to sensitive species, soils, and water features, and failure to
18 close and decommission trails that impair sensitive resources has caused damage to city property and
19 leased lands, and degraded the natural resources therein.
20 E. The PROS Plan and Open Space Management Plan.
21 62. The 2024 PROS Plan updates the City’s previous PROS Plan, which was issued in
22 1992.
23 63. The PROS Plan incorporates a second document, the OSMP, which was prepared to
24 implement Goal 7 of the PROS Plan: “Develop and Implement an Open Space Management Plan
25 (OSMP)” prior to the completion and approval of the PROS Plan. (EIR Addendum, pp. 1, 9.)
26 64. The OSMP purports to provide a programmatic framework to address thematic
27 objectives, policies, and recommendation, but also includes specific steps and “measurable actions
28 13
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 that specify how a desired outcome can be achieved.” (OSMP, pp. 2-3.) The OSMP states that
2 “[u]pon adoption of the PROS Plan, the following actions should be prioritized for implementation at
3 [Waterdog] and SJC,” and proceeds to list several specific actions, including trail modifications and
4 stream crossing improvements. (Id. at pp. 3-4.) There is no indication that the City intends to conduct
5 project level CEQA analysis prior to implementation of recommended trail projects.
6 65. The OSMP was not reviewed under CEQA, but includes baseline information
7 describing biological resources, trails, and recreational use within the City’s open space. (OSMP, §§
8 2-3.) These sections are referred to as the “environmental assessment” and “recreation use
9 assessment.”
10 66. The OSMP environmental assessment section states that it was informed by three site
11 visits conducted in March 2022 to assess habitat along existing trails, and “ground-truth” information
12 obtained from online databases. (OSMP, p. 14.) These visits confirmed the presence of approximately
13 30 acres of “sensitive biological communities” within Waterdog, including California bay woodlands,
14 arroyo willow riparian woodlands, and California buckeye groves riparian woodlands. (Id., pp. 14,
15 18, 20.) Maps also indicate that unauthorized trails have been cut through sensitive biological
16 communities. (Id., p. 20.)
17 67. The environmental assessment section of the OSMP identifies 18 special-status
18 species, including 11 plant species and 7 animal species, that may occur in Waterdog, based on
19 information from the California Natural Diversity Database (CNDDB). While site visits corroborated
20 the presence of suitable conditions for some of these species, however, there were no formal surveys
21 conducted and site observations were limited to conditions within view from trails during the month
22 of March. (OSMP, pp. 14, 23-30.) This was not a comprehensive review and the OSPM makes no
23 effort to assess potential impacts of proposed actions or unauthorized trail-building on protected
24 species. For example, the OSMP did not evaluate whether trails adjacent to woodrat nests would
25 potentially displace and have a lethal impact on protected species such as the San Francisco dusky-
26 footed woodrat.
27 68. The OSMP did not evaluate whether Waterdog contains suitable habitat for the
28 14
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 protected bumblebee species, Western Bumblebee and Crotch’s Bumblebee.
2 69. The OSMP is dismissive of potential impacts on protected Mountain Lions, stating
3 that “if disturbed they would simply move on to another, more suitable part of their range.” (OSMP,
4 p. 29.) This conclusion is not based on substantial evidence and fails to recognize or evaluate
5 Waterdog’s role as a wildlife travel corridor connecting habitat fragments for wildlife such as
6 Mountain Lions. The City’s lackadaisical approach suggests that all wildlife protection measures are
7 unnecessary because all wildlife can just move to a different area. This position contributes to the
8 likelihood that the locally protected Mountain Lions who traverse Waterdog will be pursued, and may
9 be killed, because they are forced to avoid Waterdog open space due to the lack of protective
10 measures, which forces these protected animals to use alternate routes and cross roadways for their
11 necessary, life-sustaining movement patterns. The pursuit and cause of death of these sensitive
12 protected species comes in a variety of direct and indirect manners, including the mismanagement of
13 open space as safe wildlife corridors necessary for the survival of the protected local mountain lion
14 population who rely on vast home ranges for their survival.
15 70. The OSMP documents approximately 2 miles of previously unmapped trails that have
16 been illegally constructed in Waterdog, in addition to the 8.5 miles of trails documented in the 2017
17 General Plan. (OSMP, p. 46.) This means unauthorizes trails account for 19% of Waterdog’s total
18 trail miles, or a 23.5% increase in just 5 years,6 none of which were properly reviewed for
19 environmental impacts or authorized by City officials. Most of these unauthorized trails have been
20 allowed to remain in use despite the lack of formal environmental review to identify potentially
21 significant impacts on special status species and other natural resources. In addition, the OSMP now
22 proposes to legitimize these unauthorized trails by incorporating them into City maps (OSMP, p. 51),
23 in effect rewarding illegal activity.
24 71. The environmental assessment characterized trail conditions by documenting instances
25 of trail erosion and ranking these as low, medium, or high. The OSMP documents 300 instances of
26
6
The OSMP was originally published in 2022, and although reissued in 2024, was not substantively
27 updated.
28 15
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 trail erosion within Waterdog, of which 45% on mapped trails and 18% on unmapped trails exhibited
2 moderate to severe erosion. (OSMP, pp. 31, 50.) The OSMP also notes that this was “not a
3 comprehensive inventory.” (OSMP, p. 47; see also PROS Plan, pp. 96, 101.)
4 72. The OSMP also identified approximately 50 stream crossings along existing trails and
5 recommended reducing this number by re-routing or consolidating these where feasible, and
6 decommissioning these with physical barriers to allow vegetation to recover. (OSMP, pp. 31, 37-38.)
7 73. The OSMP does not analyze potential impacts of recommended actions on sensitive
8 species and biological communities, and does not evaluate whether mitigation is necessary to prevent
9 significant impacts. There is no substantive analysis of the impacts of unauthorized trails and trail
10 modifications on sensitive native plants and wildlife, including habitat loss due to trail widening and
11 spidering, increased risk of collision or injury, and increased noise and human activity. Information
12 concerning sensitive plant species does not address location or frequency, and there is no analysis to
13 assess the proximity of trails to sensitive habitat, riparian areas, nesting or denning areas, bat roosts,
14 etc. There is also no analysis of the impacts of trails on wildlife using trails as travel corridors, or for
15 basking; snakes, lizards, or turtles, for example, could be run over by mountain bikers who fail to
16 notice them in time to slow down.
17 74. The OSMP does not assess potential environmental impacts caused by the ongoing
18 proliferation of unauthorized trails and trail modification activities, or impacts from increased trail
19 use by mountain bikes, such as trail widening and spidering. There is also no analysis of the impact of
20 trail erosion on sedimentation of Waterdog Lake and Belmont Creek and its tributaries, and no
21 information concerning the frequency and cost of dredging and soil movement necessary to maintain
22 these water bodies and connected culverts, or whether erosion is increasing as a result of extreme
23 storm events associated with climate change. The OSMP also provides no analysis of enforcement
24 strategies to prevent the continued construction and use of unauthorized trails, and the unauthorized
25 construction of mountain biking features on trails, from further exacerbating existing erosion and
26 maintenance backlogs.
27 75. In fact, the OSMP acknowledges that additional information and analysis is needed
28 16
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 before implementing proposed trail projects, stating that “protocol-level surveys for special-status
2 species with high or moderate potential to occur are recommended for any ground or vegetation
3 disturbing activities” (OSMP, p. 37), yet, such analysis has never been undertaken for the miles of
4 trails within Waterdog, including the “previously unmapped trails” that the OSMP states “can be
5 incorporated into City maps.” (OSMP, p. 51.)
6 76. In addition, while the OSMP recreation section includes a section on guidelines and
7 best management practices (BMPs) for trail construction and design (OSMP, pp. 54-59), this lists
8 general design features and technical considerations but does not evaluate potential impacts of any
9 specific trails or improvements, and does not provide evidence that BMPs will mitigate such
10 unspecified impacts. This discussion appears to suggest that BMPs could be used as a substitute for
11 project-level CEQA analysis and enforceable mitigation measures (OSMP, p. 58), raising concerns
12 that the City has no intention of tiering off the programmatic EIR or undertaking further CEQA
13 review of proposed trails and trail modifications.
14 77. The OSMP also indicates that certain unauthorized, or previously unmapped, trails
15 will be authorized through the adoption of the Plan, including one that cuts through the Belmont
16 Creek riparian area at the western side of Waterdog open space. There is no analysis of the potentially
17 significant impacts of this trail on biological resources, soil erosion, or water quality. (OSMP, p. 51.)
18 78. In addition, while the PROS Plan recommends formalizing the use of volunteer
19 programs for trail maintenance, it does not examine past issues with this program, such as inadequate
20 training and supervision. For example, volunteers have at times added mountain biking features and
21 stream crossings to trails, or cut vegetation to improve clearance for bicycles rather than repairing
22 damage, and have performed unauthorized work to reopen trails that were closed due to prevent
23 severe erosion. Further analysis is needed to ensure that volunteer programs are properly supervised
24 and do not simply sanction unauthorized or poorly planned trail modifications.
25 79. The PROS Plan also provides no additional environmental impact analysis beyond that
26 contained in the OSMP, but simply summarizes and restates this information in the various sections
27 addressing open space conditions, objectives, policies, recommendations, and priorities
28 17
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
F. The EIR Addendum to the 2017 General Plan Programmatic EIR.
1
80. The EIR Addendum also provides no environmental impact analysis of specific
2
actions recommended by the OSMP and PROS Plan.
3
81. Generally, an EIR Addendum is used to amend a previously certified EIR when some
4
changes or additions are necessary but there are no substantial changes to the project, changed
5
circumstances, or new information indicating new significant environmental effects or a substantial
6
increase in the severity of previously identified significant effects. (Cal. Code Regs., tit. 14, §§ 15162,
7
15164.)
8
82. The EIR Addendum identifies the City’s 2017 General Plan EIR as the previously
9
certified EIR to which the addendum applies. The 2017 EIR identified the City’s general plan as the
10
project under review, while the EIR Addendum identifies the PROS Plan as the project. The projects
11
overlap geographically.
12
83. The 2017 General Plan EIR is a programmatic EIR that “does not assess site-specific
13
impacts” and states that “[a]ny future development project made possible by the Proposed Project will
14
be subject to individual, site-specific environmental review, as required by State law.” (Draft EIR at
15
1-1; see also Final EIR at 1-1.)
16
84. The EIR Addendum enumerates objectives and policies of the PROS Plan, but does
17
not analyze the potential impacts of these policies. (EIR Addendum, pp. 13-15.) For example, Policy
18
P.3 articulates the following directives: “Align or relocate, modify trails to avoid impacting sensitive
19
habitats such as wetlands and areas where endangered species are present. Avoid aligning trails along
20
the boundaries of sensitive habitats.” However, there is no analysis of any potential impacts
21
associated with relocating or modifying existing trails. The succeeding impact analysis simply asserts,
22
without substantial evidence, that such policies will reduce or eliminate any significant impacts.
23
85. The EIR Addendum also acknowledges that the PROS Plan and OSMP includes
24
specific recommendations for implementing trail improvements and modifications, formalizing
25
volunteer restoration programs, implementing wildfire fuel reduction treatments, improved
26
management of invasive weeds, and restoration of native plant communities, none of which are
27
28 18
VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
1 clearly described or analyzed to identify potentially significant impacts. (EIR Addendum, p. 21.)
2 86. The EIR Addendum extends the program level analysis of the 2017 EIR to the PROS
3 Plan, but does not provide a site level analysis of potential impacts of specific actions to be
4 implemented under the OSMP and PROS Plan.
5 87. Section 4.3 of the 2017 EIR addressed the General Plan’s impacts to Biological
6 Resources and acknowledges that the impact analysis did not include any field studies or research but
7 relied on existing data sources and literature about the area. (2017 EIR at p. 4.3-30.) The 2017 EIR
8 did not examine the impacts of new trails or trail modifications on biological resources within
9 Waterdog.
10 88. The EIR Addendum identifies several sensitive plants and wildlife species that may
11 occur within the project area but were not considered in the 2017 EIR, but assumes that the program
12 level analysis of the 2017 EIR can be extended to these species. However, there is no site specific
13 analysis or action-specific analysis to identify the potential impact of new trails and trail
14 modifications on any sensitive species and there are no mitigation measures recommended to prevent
15 such impacts.
16 89. The impact analysis also fails to examine the potential for increased recreational
17 activities and night biking to impact mountain lions, a CESA candidate species, by interfering with
18 their use of the area as a wildlife travel corridor, instead conjecturing that they “would simply move
19 on to another, more suitable part of their range.” (EIR Addendum, p. 41.) The impact analysis
20 concludes incomprehensibly and without evidence that any impacts on wildlife, including mountain
21 lions, would be less than significant. There is no substantive analysis of significance criterion (a),
22 which is supposed to evaluate whether the project would “have a substantial adverse effect, either
23 directly or through habitat modification on any species identified as a candidate, sensitive, or special
24 status species ….”, or criterion (d), which evaluates whether the project w
Preview
Jessica L. Blome (Cal Bar. No. 314898) 1 Susann M. Bradford (Cal Bar. No. 341338) 2 GREENFIRE LAW, PC 2748 Adeline Street, Suite A 3 Berkeley CA 94703 Ph/Fax: (510) 900-9502 4 Email: jblome@greenfirelaw.com sbradford@greenfirelaw.com 5 6 Attorneys for Petitioners 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SAN MATEO 9 Case No.: ______________ 10 FRIENDS OF WATERDOG OPEN SPACE, DENIZ BOLBOL, and JOSEPH P. CUVIELLO, 11 VERIFIED PETITION FOR WRIT OF Plaintiffs and Petitioners, 12 MANDATE [CEQA], COMPLAINT FOR v. DECLARATORY AND INJUNCTIVE 13 RELIEF CITY OF BELMONT, BRIGITTE SHEARER, 14 in her official capacity as Director of Belmont Code Civ. Proc., §§ 1085, 1094.5 (Writ of Parks and Recreation, and DOES 1-10, agents or Mandate); Pub. Res. Code, §§ 21000, et seq. 15 Officers acting on behalf of the City of Belmont, (CEQA); Code of Civ. Proc., § 1060 (declaratory judgment); Code of Civ. Proc., Defendants and Respondents. § 526 (injunction); Code of Civ. Proc., § 526a 16 (taxpayer waste) 17 Complaint Filed: April 15, 2024 18 19 20 21 22 23 24 25 26 27 28 1 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 This action alleges that the City of Belmont violated the California Environmental Quality Act 2 (CEQA), California Public Resources Code, section 21000, et seq., by adopting a new Parks, 3 Recreation, and Open Space Master Plan (PROS Plan) and a new Open Space Management Plan on 4 the basis of an Environmental Impact Report Addendum (EIR Addendum) to the 2035 General Plan 5 EIR rather than conducting a proper environmental review, as required by CEQA. Both the PROS 6 Plan and the Open Space Management Plan authorize actions that may have significant impacts on 7 protected species and natural resources that are not analyzed in the EIR Addendum, in the 2035 8 General Plan EIR, or in any other document. In addition, Petitioners also allege that the City’s failure 9 to maintain trails, prevent unauthorized trails and modifications, or establish adequate trail use 10 restrictions within Waterdog Lake Open Space has caused damage to and degraded city property and 11 leased lands in violation of California’s taxpayer waste law, Code of Civil Procedure section 526a. 12 Petitioners further allege that the City has failed to comply with the Lake and Streambed Alteration 13 Program, Fish and Game Code section 1602, by allowing unpermitted construction and modification 14 of stream crossings to alter streambeds and streambanks. Through this lawsuit, petitioners seek a writ 15 and injunction to compel the City to comply with its legal obligations under CEQA and under the 16 Lake and Streambed Alteration Program and the California Endangered Species Act, and to require 17 the City to take action sufficient to provide adequate maintenance and enforcement to prevent 18 unauthorized trail construction and use from further damaging and degrading City property and 19 leased lands. 20 In support of this petition, petitioners allege as follows: 21 JURISDICTION AND VENUE 22 1. This Court has jurisdiction over this action pursuant to Code of Civil Procedure, 23 sections 1085 (traditional writ of mandate), 1094.5 (peremptory writ of mandate), 1060 (declaratory 24 judgment), 526 (injunction), and 410.10 (equitable powers of court), and Public Resources Code, 25 sections 21168.5 and 21168.9 (CEQA). This Court also has authority to award attorney’s fees and 26 costs under Code of Civil Procedure section 1021.5 where, as here, Petitioners seek to enforce 27 important rights affecting the public interest. 28 2 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 2. This Court also has jurisdiction pursuant to Code of Civil Procedure, section 526a, 2 authorizing taxpayers to undertake actions against officers or agents of local agencies to prevent 3 unlawful expenditures or waste of city property. 4 3. Venue is proper in this Court pursuant to Code of Civil Procedure, section 394, 5 because defendants and respondent is a city located in San Mateo County and employees or agents 6 thereof. 7 4. The petition initiating this action was timely filed within 30 days after respondent 8 issued a Notice of Determination in accordance with Public Resources Code, section 21167, 9 subdivision (b). 10 5. On April 12, 2024, petitioners complied with Public Resources Code, section 21167.5 11 by serving a written notice on respondent regarding the petitioner’s commencement of this action. A 12 true and correct copy of the notice is attached hereto as Exhibit A. 13 6. Petitioners are sending a copy of this Petition and Complaint to the California 14 Attorney General concurrently with filing, thereby complying with the requirements of Public 15 Resources Code section 21167.7 and Code of Civil Procedure section 388. 16 PARTIES 17 7. Petitioner Friends of Waterdog Open Space (FWOS) is an unincorporated association 18 made up of individuals who live, work, and recreate in the City of Belmont’s open spaces, parks, and 19 neighborhoods, including Waterdog Lake and Open Space, that operates as a project of Humanity for 20 Education, a 501(c)3 non-profit organization. 21 8. Plaintiff and Petitioner Deniz Bolbol is an individual citizen who resides in and pays 22 taxes in Belmont, California. Petitioner Bolbol has long advocated for the protection of Waterdog 23 Lake and Open Space, which she visits frequently for purposes of recreation, observing wildlife and 24 native plants, connecting with and protecting the natural environment, bird watching, and the 25 aesthetic enjoyment of nature. 26 9. Plaintiff and Petitioner Joseph P. Cuviello is an individual citizen who resides in and 27 pays taxes in Belmont, California. Petitioner Cuviello has long advocated for the protection of 28 3 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 Waterdog Lake and Open Space, which he visits frequently for purposes of recreation, observing 2 wildlife and native plants, bird watching, and the aesthetic enjoyment of nature. 3 10. Defendant and Respondent City of Belmont is an incorporated city located in San 4 Mateo County, California. The City was the lead agency responsible for preparing the EIR 5 Addendum, as required by CEQA. The City is a “local agency” within the meaning of the Taxpayer 6 Waste Law, Code of Civil Procedure, section 526a, subdivision (d)(1). 7 11. Defendant Brigitte Shearer is the Director of the City of Belmont Parks and Recreation 8 Department, which oversees the management of the City’s parks and open spaces, including 9 Waterdog Lake and Open Space. 10 12. Defendants DOES 1-10, are the officer or agents of the City that are primarily 11 responsible for the property damage caused by the City’s inadequate management of open space trails 12 and natural resources. 13 GENERAL ALLEGATIONS OF FACT 14 A. Introduction 15 13. Waterdog Lake and Open Space (or “Waterdog”) is one of the few remaining natural 16 areas within the City of Belmont, and serves as important wildlife habitat and as a vital wildlife 17 corridor. Waterdog consists primarily of California’s oak woodlands which have the richest wildlife 18 species abundance of any habitat in the state, yet these habitats are increasingly rare and are 19 threatened by human activity. 20 14. Waterdog’s sensitive native plant communities, wildlife habitat, soils, waterways, and 21 trail system are threatened by the City’s failure to manage the open space in a manner that prevents 22 significant degradation of the property and its natural resources. 23 15. Petitioners have repeatedly urged the City to comply with CEQA, and to protect 24 Waterdog’s trails and resources, as well as user safety, by closing and preventing unauthorized trails, 25 by conducting CEQA analyses of new and proposed trails and trail maintenance activities, and by 26 establishing and enforcing effective trail use restrictions. Petitioners submitted a petition and notice of 27 28 4 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 intent to sue the City over the City’s failures in June 2023. 2 16. Petitioners stayed litigation in 2023 because the City announced that it would conduct 3 a CEQA review of the PROS Plan and Open Space Management Plan. Petitioners were hopeful that 4 the City’s CEQA process would address their concerns by evaluating the ongoing resource damage in 5 Waterdog and evaluating management actions and mitigation to address this issue. However, instead 6 of examining the potentially significant impacts of ongoing activities and proposed management 7 actions, the City prepared an inadequate and cursory EIR Addendum to the City’s 2017 General Plan 8 EIR that fails as an informational document. 9 17. The EIR Addendum is legally inadequate because the PROS Plan and Open Space 10 Management Plan contain substantial new information and recommend specific actions that may have 11 significant impacts that were not evaluated in the 2017 EIR, and because the EIR Addendum 12 disregards project changes, changed conditions, and evidence that impacts are currently and will be 13 more severe and significant than previously anticipated in 2017. 14 18. In addition, the 2017 EIR, with regard to Biological Resources states, “No new field 15 studies or other research were conducted for the preparation of this EIR, as existing resources 16 contained information on all pertinent aspects of biological resources in the Planning Area in an 17 appropriate level of detail for a program-level environmental assessment.” (2017 EIR p. 4.3-30.) 18 However, the “existing resources” cited in the 2017 EIR do not include any assessment of the impact 19 of trails and human activities on Waterdog’s habitat and biological resources. Prior planning 20 documents were published years before the trail network was built. In total disregard for CEQA, the 21 City has never performed any environmental study of the Waterdog Open Space; there was no EIR 22 prepared when the 1992 Parks and Open Space Master Plan was adopted, no EIR when the 1998 Trail 23 Plan was approved, no EIR when the 2014 Lake Loop Trail was approved to be constructed in a 24 riparian area. The public has thus been deprived of any means by which to determine the adequacy of 25 the 2017 General Plan EIR with respect to the Waterdog Space trail system. The EIR Addendum at 26 hand again fails to conduct adequate field studies or analysis to inform the public and decision- 27 makers of the potentially significant impacts of the PROS Plan and OSMP. 28 5 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 19. Because the EIR Addendum is inadequate as a CEQA document, the City’s approval 2 of the PROS Plan and Open Space Management Plan must be rescinded. 3 20. In the meantime, the City has failed to maintain trails or to enforce existing open space 4 management rules at Waterdog, or to prevent unauthorized trails and streambed modifications from 5 causing ongoing damage to City owned and managed open space resources, and failing to adhere to 6 the City own General Plan which requires the City to take actions to protect Waterdog as a valuable 7 wildlife corridor in order to increase wildlife population diversity. 8 B. Procedural Background. 9 21. In June 2022, the City of Belmont released the Final Draft Parks, Recreation, and 10 Open Space Master Plan (Draft PROS Plan), which included the Belmont Open Space Management 11 Plan (OSMP) as Appendix G. 12 22. The Draft PROS Plan was placed on the Belmont City Council Meeting agenda to be 13 considered for review and adoption on July 12, 2022. The City had not conducted any CEQA review 14 to evaluate the environmental impacts of the Draft PROS Plan and OSMP. 15 23. On July 12, 2022, Petitioner Bolbol submitted public comments urging the City to 16 comply with CEQA. 17 24. On June 22, 2023, in response to the ongoing proliferation of unauthorized trails and 18 un-remediated trail damage in Waterdog, petitioners submitted a Petition and Notice of intent to sue 19 over the City of Belmont’s failure to enforce legal protections of natural resources in the Waterdog 20 Open Space. 21 25. On October 2, 2023, petitioners were informed by City’s counsel that the Open Space 22 Management Plan was being reviewed under CEQA. In response, petitioners paused their planned 23 litigation. 24 26. On February 1-2, 2024, the City’s Park and Open Space Commission (PROS 25 Commission) released the Final Draft PROS Plan and EIR Addendum. 26 27. On February 7, 2024, the PROS Commission approved a Motion to Recommend 27 PROS Plan and EIR Addendum to the Belmont City Council for approval. 28 6 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 28. The PROS Plan and OSMP were placed on the Belmont City Council Meeting agenda 2 to be considered for adoption on March 12, 2024, 3 29. Petitioners submitted timely public comments objecting to the City’s decision to 4 prepare an EIR Addendum, identifying potentially significant impacts of the PROS Plan and OSMP, 5 and explaining why an EIR Addendum was inadequate. Petitioners’ comments also incorporated 6 expert comments addressing impacts on mountain lions and petitioners’ June 2023 letter and 7 supporting documents, including an independent environmental assessment of trail activities 8 impacting biological resources. 9 30. On March 12, 2024, Belmont City Council adopted the 2024 PROS Plan and the EIR 10 Addendum. 11 31. The City has no administrative appeals process in place for reviewing City Council 12 decisions. 13 32. On March 15, 2024, the City filed a Notice of Determination (NOD) with the County 14 Clerk of San Mateo County. 15 C. Environmental Setting. 16 33. Waterdog Lake Open Space is a 293-acre undeveloped area located in Belmont, 17 California that is designated and managed as open space by the City. The open space is managed by 18 the City Parks and Recreation Department, with guidance from the PROS Commission, which serves 19 as an advisory board. 20 34. Parts of Waterdog are situated on a tract of land that is leased by the City from Notre 21 Dame de Namur University (NDNU). The City entered an initial 50-year lease in 1965, which was 22 renewed in 2011. The leased area consists of about 50 acres and includes Waterdog Lake, sections of 23 Belmont Creek, Lake Road, trails, a sewer line, and open space. While the rental cost is a mere $100 24 per year, the value to the City in securing the Belmont Creek watershed, preserving the valley’s rich 25 biodiversity, and providing recreational and aesthetic enjoyment for its citizens is immense. 26 35. The Waterdog lease requires the City to maintain the area as a green belt, and to 27 maintain, preserve, and operate the dam for flood control and for “recreational activities conducted 28 7 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 and authorized by the City of Belmont.” In addition, the agreement provides that the “City shall, at its 2 sole cost” maintain the dam and comply with all laws or regulations “pertaining to the maintenance 3 and operation of the [dam and lake] and the use of the premises for recreational purposes.” (City of 4 Belmont City Council, Resolution No. 2722 (May 3, 1965); City of Belmont City Council, Resolution 5 Authorizing the Renewal of Lease with Notre Dame de Namur University for the Waterdog Lake 6 Open Space Area (June 14, 2011). 7 36. Another tract of Waterdog open space land, adjacent to the leased lands, is known as 8 the Brooks Preserve, which was donated to the City by John Brooks on the condition that it be 9 “maintained in perpetuity as an unspoiled wild area or ‘green belt’ to preserve the trees and natural 10 environment” (Letter from HT Stearns, executor, to F. Holland, Treasurer for the City of Belmont, 11 Nov. 29, 1977.) In accepting this land grant, the City “guarantee[d] that the property would be 12 retained in perpetuity as open space with perhaps trails through it but with low use as at the present 13 time.” (City Council Minutes, Nov. 28, 1977.) However, an independent environmental assessment 14 found that at least two of the trails in the Brooks Preserve “violate the terms of the land donation” by 15 causing significant degradation of natural resources.1 16 37. The geography of Waterdog is characterized by steeply sloping hillsides and canyons 17 that are mostly bordered by residential development on the ridges above. The steep slopes (mostly 18 between 30% and 45%) are susceptible to debris flows (landslides), slumping, and soil creep. 19 38. Waterdog Lake is a reservoir situated at the northern end of Waterdog within the 20 Belmont Creek drainage. The lake is fed by Belmont Creek and several small tributaries and 21 ephemeral drainages that flow from the steep hillsides of Waterdog. Belmont Creek continues below 22 the lake and eventually flows into San Francisco Bay. 23 39. Approximately 8.5 miles of recreational trails have been constructed in Waterdog lake, 24 including multi-use trails and narrow single track trails suitable for hiking. Despite rules prohibiting 25 1 26 See Scott Cashen, Environmental Assessment of Recreational Trails in John S. Brooks Memorial Open Space Preserve, Water Dog Lake Park, and Hidden Canyon Open Space, p.12 (March 29, 2021); this 27 document was attached to petitioners’ public comments and is in the administrative record. 28 8 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 unauthorized trails, nearly 2 miles of unauthorized trails have been constructed or caused, largely by 2 off trail mountain bike use, since 2017, when trail maps were published in the Belmont General Plan 3 and General Plan EIR. 4 40. Many of the Waterdog trails cut through streambeds and riparian areas; including an 5 unauthorized trail that follows Belmont Creek, cutting back and forth across the creek multiple times, 6 and disrupting previously intact riparian habitat and sensitive biological communities. 7 41. Waterdog is located on the San Francisco Peninsula, which is central to one of 36 8 global biodiversity hotspots, which are areas distinguished by exceptional levels of biodiversity but 9 also significantly threatened by human habitation and development. 10 42. The Conservation Lands Network, a regional conservation strategy for the San 11 Francisco Bay Area, has identified approximately 91% of Waterdog as “areas essential to 12 conservation goals.” 13 43. Waterdog contains a number of sensitive natural communities. The 2017 Belmont 14 General Plan, which is known as the 2035 General Plan, identifies four sensitive plant communities 15 within Waterdog, including blue oak woodland, coastal oak woodland, valley foothill riparian, and 16 chamise-redshank chaparral. The more recent 2022 San Mateo County Fine Scale Vegetation Map 17 identifies three sensitive biological communities within Waterdog, including California bay 18 woodlands, arroyo willow riparian woodlands, and California buckeye groves riparian woodlands. 19 44. Notably, oak woodlands offer the richest wildlife species abundance of any habitat in 20 California, with over 330 species of birds, mammals, reptiles, and amphibians depending on them at 21 some stage in their life cycle. In addition, more than 225 species of birds, mammals, reptiles, and 22 amphibians depend on California’s riparian habitats, while California’s chaparral plant communities 23 support exceptional biodiversity of bird, mammal, and insect communities aligning with shrub cover. 24 45. Several special-status species, as designated as by the California Department of Fish 25 and Wildlife (CDFW), are known to be present or likely to occur within Waterdog. Rare and 26 endangered plant species that have been documented within Waterdog include western leatherwood 27 (Dirca occidentalis), Franciscan onion (Allium peninsulare var. franciscanum), San Francisco 28 9 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 collinsia (Collinsia multicolor), and arcuate bush-mallow (Malacothamnus arcuatus). 2 46. Several special-status animal species are also documented as present or having the 3 potential to occur within Waterdog, including the following: San Francisco dusky-footed woodrat 4 (Neotoma fuscipes annectens), Northern harrier (Circus hudsonius), and Yellow warbler (Setophaga 5 petechia), which are California Species of Special Concern;2 Cooper’s hawk (Accipiter cooperii), 6 Sharp-shinned hawk (Accipiter striatus), and Merlin (Falco columbarius), which are CDFW Watch 7 List Species; White-tailed kite (Elanus leucurus), which is a fully protected species;3 and Oak 8 titmouse (Baeolophus inornatus), which has been identified by the U.S. Fish and Wildlife Service as 9 a Bird of Conservation Concern. 10 47. Mountain lions (Puma concolor) have also been documented within and around 11 Waterdog on several occasions.4 Lions in this region belong to the Central Coast Northern (CC-N) 12 population, which is protected as a candidate species under the California Endangered Species Act 13 (CESA). Mountain lions are also a “specially protected mammal” pursuant to the California Wildlife 14 Protection Act (CWPA), which prohibits capture and trade in mountain lions and their parts and 15 prioritizes the protection of habitat corridors to maintain the genetic integrity of wildlife populations. 16 48. Waterdog may also provide habitat for protected bumble bee species that were recently 17 listed as candidate species under CESA. Western Bumblebee and Crotch’s Bumblebee have the 18 potential to occur within this area but have not been surveyed for. 19 49. Additionally, the U.S. Fish & Wildlife Service (USFWS) online database, identifies 20 the following federally protected threatened and endangered species as “potentially affected by 21 activities in this location”: Salt Marsh Harvest Mouse (Reithrodontomys raviventris); California Least 22 Tern (Sterna antillarum browni); California Ridgeway’s Rail (Rallus obsoletus obsoletus); Marbled 23 Murrelet (Brachyramphus marmoratus); Western Snowy Plover (Charadrius nivosus nivosus); 24 2 25 See CDFW, “Species of Special Concern,” https://wildlife.ca.gov/Conservation/SSC. 3 See CDFW, “Fully Protected Animals,” https://wildlife.ca.gov/Conservation/Fully-Protected. 26 4 Petitioners have also compiled and shared with the City a record off documented sightings of mountain 27 lions directly around Waterdog. 28 10 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 Northwestern Pond Turtle (Actinemys marmorata); San Francisco Garter Snake (Thamnophis sirtalis 2 tetrataenia); California Red-legged frog (Rana draytonii); California Tiger Salamander (Ambystoma 3 californiense); Foothill Yellow-legged Frog (Rana boylii); Mission Blue Butterfly (Icaricia icarioides 4 missionensis); Monarch Butterfly (Danaus plexippus); Fountain Thistle (Cirsium fontinale var. 5 fontinales); Marin Dwarf-flax (Hesperolinon congestum); San Mateo Thornmint (Acanthomintha 6 obovata ssp. duttonii); San Mateo Woolly Sunflower (Eriophyllum latilobum); and White-rayed 7 Pentachaeta (Pentachaeta bellidiflora).5 8 50. Bats have also been observed in and around Waterdog, which may include sensitive 9 species, such as Hoary bat (Lasiurus cinereus), listed as a medium-priority imperiled species by the 10 Western Bat Working Group, and other bat species, such as Pallid bat (Antrozous pallidus), which is 11 ranked as a vulnerable species in California. Recent studies indicate that bats may be impacted by 12 high frequency noise emitted by e-bikes when trails are located near bat roosts. 13 D. Damage to City Property and Natural Resources. 14 51. The City has failed to adequately maintain Waterdog trails and has failed to prevent a 15 proliferation of unauthorized trails and trail modifications from destabilizing soils and impairing 16 sensitive biological resources, wetlands, streambanks and streambeds, and water quality. 17 52. The proliferation of unauthorized trails within Waterdog has been a growing problem 18 for several years, as shortcuts and trail features created by mountain bikers have expanded and 19 developed into major new trails. Many of these trails intersect riparian areas, cut across streambeds, 20 or pass through areas of ponding water and seeps. Modifications include mountain biking features 21 like jumps, banked curves, and rolling dips, as well as stream crossings and causeways through wet 22 areas. 23 53. Several unauthorized trails cut through sensitive plant communities and riparian areas 24 that provide important habitat for numerous species, causing habitat fragmentation, increasing 25 barriers and risks to wildlife, and allowing invasive plants to take root in newly disturbed soils. 26 5 See U.S. Fish and Wildlife Service, Information for Planning and Consultation, 27 https://ipac.ecosphere.fws.gov/location/U2UN5RXRE5BKJFRNOE4CMBPXHA/resources. 28 11 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 54. Trails cut into steep hillsides have also destabilized soils and caused severe erosion 2 and gully formation. Impacts from these trails include significant erosion problems, potential impacts 3 to sensitive species, and water quality impairment. Expensive dredging has been necessary to mitigate 4 sedimentation of Waterdog Lake and area streams due to severe soil erosion and trail collapse, 5 exacerbated by extreme rain events, or atmospheric rivers, associated with climate change. Extreme 6 erosion in January 2023 required emergency dredging to excavate culverts in the Hidden Canyon area 7 near the south end of Waterdog. 8 55. Poorly planned trails and excessive numbers of stream crossings has also damaged 9 streambanks and streambeds, and impaired water quality as a result of increased sedimentation. 10 Debris from vegetation cutting to increase clearance for bicycles has also been scattered in creeks. 11 Improper disposal of woody debris impairs waterways and increases risk of sudden oak death, which 12 is spread by water-borne pathogens. 13 56. Increased trail density, trail widening, and spidering has increased soil disturbance and 14 compaction, eliminated surface vegetation and cover for wildlife, and increased risk of invasive 15 species. 16 57. Increased trail density also impairs wildlife habitat and wildlife travel corridors by 17 increasing human presence within the affected areas. Many wildlife species, including mountain 18 lions, are sensitive to human noise and activity, and avoid areas that are frequented by humans. 19 58. The City has failed to take action to prevent unauthorized trails in sensitive habitat, 20 and has failed to close or decommission these trails, instead sanctioning their continued use. By 21 allowing unauthorized construction and modification of stream crossings, and allowing wet crossings 22 through streams, the City has contributed to unlawful streambed alterations and sediment pollution in 23 violation of Belmont City Code, section 16-24, which makes it unlawful to discharge pollutants into 24 waterways, and in violation of Fish and Game Code, section 1602, the Lake and Streambed Alteration 25 program. These actions and inactions also disregard conditions of the Municipal Regional Stormwater 26 NPDES Permit for the San Francisco Bay Region (MRP), which requires the City to “effectively 27 prohibit the discharge of non-stormwater (materials other than stormwater) into storm drain systems 28 12 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 and watercourses.” (San Francisco Bay Regional Water Quality Control Board, Order No. R2-2022- 2 0018, section A1.) 3 59. The City has also allowed Waterdog trails to be used at dusk and after dark, including 4 for night biking, increasing risk of harm to nocturnal species, including protected species, that are 5 active at dusk and may use trails. For example, mountain lions are typically active at dusk and dawn, 6 making conflicts most likely during these times, which could lead to collisions or injury, or cause a 7 lion being injured, hunted, or killed; or cause lions to be flushed from trails by human pursuit, or 8 force lions to avoid Waterdog and cross roadways where they are more likely to be killed. 9 60. The City’s much-touted volunteer program has also caused damage to natural 10 resources as volunteers with inadequate training have been encouraged to repair trails, including 11 unpermitted work on stream crossings in wet riparian areas. On some trails, volunteers have 12 constructed new mountain biking features, like jumps and banked curves, instead of repairing trails. 13 There is also no evidence that surveys were conducted to identify sensitive species or assess the need 14 for mitigation to protect rare plants, animal dens, and nesting or roosting sites, or that permits were 15 obtained prior to these activities. 16 61. The City’s failure to maintain and repair deteriorating trails, failure to ensure that new 17 trails are evaluated to screen for impacts to sensitive species, soils, and water features, and failure to 18 close and decommission trails that impair sensitive resources has caused damage to city property and 19 leased lands, and degraded the natural resources therein. 20 E. The PROS Plan and Open Space Management Plan. 21 62. The 2024 PROS Plan updates the City’s previous PROS Plan, which was issued in 22 1992. 23 63. The PROS Plan incorporates a second document, the OSMP, which was prepared to 24 implement Goal 7 of the PROS Plan: “Develop and Implement an Open Space Management Plan 25 (OSMP)” prior to the completion and approval of the PROS Plan. (EIR Addendum, pp. 1, 9.) 26 64. The OSMP purports to provide a programmatic framework to address thematic 27 objectives, policies, and recommendation, but also includes specific steps and “measurable actions 28 13 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 that specify how a desired outcome can be achieved.” (OSMP, pp. 2-3.) The OSMP states that 2 “[u]pon adoption of the PROS Plan, the following actions should be prioritized for implementation at 3 [Waterdog] and SJC,” and proceeds to list several specific actions, including trail modifications and 4 stream crossing improvements. (Id. at pp. 3-4.) There is no indication that the City intends to conduct 5 project level CEQA analysis prior to implementation of recommended trail projects. 6 65. The OSMP was not reviewed under CEQA, but includes baseline information 7 describing biological resources, trails, and recreational use within the City’s open space. (OSMP, §§ 8 2-3.) These sections are referred to as the “environmental assessment” and “recreation use 9 assessment.” 10 66. The OSMP environmental assessment section states that it was informed by three site 11 visits conducted in March 2022 to assess habitat along existing trails, and “ground-truth” information 12 obtained from online databases. (OSMP, p. 14.) These visits confirmed the presence of approximately 13 30 acres of “sensitive biological communities” within Waterdog, including California bay woodlands, 14 arroyo willow riparian woodlands, and California buckeye groves riparian woodlands. (Id., pp. 14, 15 18, 20.) Maps also indicate that unauthorized trails have been cut through sensitive biological 16 communities. (Id., p. 20.) 17 67. The environmental assessment section of the OSMP identifies 18 special-status 18 species, including 11 plant species and 7 animal species, that may occur in Waterdog, based on 19 information from the California Natural Diversity Database (CNDDB). While site visits corroborated 20 the presence of suitable conditions for some of these species, however, there were no formal surveys 21 conducted and site observations were limited to conditions within view from trails during the month 22 of March. (OSMP, pp. 14, 23-30.) This was not a comprehensive review and the OSPM makes no 23 effort to assess potential impacts of proposed actions or unauthorized trail-building on protected 24 species. For example, the OSMP did not evaluate whether trails adjacent to woodrat nests would 25 potentially displace and have a lethal impact on protected species such as the San Francisco dusky- 26 footed woodrat. 27 68. The OSMP did not evaluate whether Waterdog contains suitable habitat for the 28 14 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 protected bumblebee species, Western Bumblebee and Crotch’s Bumblebee. 2 69. The OSMP is dismissive of potential impacts on protected Mountain Lions, stating 3 that “if disturbed they would simply move on to another, more suitable part of their range.” (OSMP, 4 p. 29.) This conclusion is not based on substantial evidence and fails to recognize or evaluate 5 Waterdog’s role as a wildlife travel corridor connecting habitat fragments for wildlife such as 6 Mountain Lions. The City’s lackadaisical approach suggests that all wildlife protection measures are 7 unnecessary because all wildlife can just move to a different area. This position contributes to the 8 likelihood that the locally protected Mountain Lions who traverse Waterdog will be pursued, and may 9 be killed, because they are forced to avoid Waterdog open space due to the lack of protective 10 measures, which forces these protected animals to use alternate routes and cross roadways for their 11 necessary, life-sustaining movement patterns. The pursuit and cause of death of these sensitive 12 protected species comes in a variety of direct and indirect manners, including the mismanagement of 13 open space as safe wildlife corridors necessary for the survival of the protected local mountain lion 14 population who rely on vast home ranges for their survival. 15 70. The OSMP documents approximately 2 miles of previously unmapped trails that have 16 been illegally constructed in Waterdog, in addition to the 8.5 miles of trails documented in the 2017 17 General Plan. (OSMP, p. 46.) This means unauthorizes trails account for 19% of Waterdog’s total 18 trail miles, or a 23.5% increase in just 5 years,6 none of which were properly reviewed for 19 environmental impacts or authorized by City officials. Most of these unauthorized trails have been 20 allowed to remain in use despite the lack of formal environmental review to identify potentially 21 significant impacts on special status species and other natural resources. In addition, the OSMP now 22 proposes to legitimize these unauthorized trails by incorporating them into City maps (OSMP, p. 51), 23 in effect rewarding illegal activity. 24 71. The environmental assessment characterized trail conditions by documenting instances 25 of trail erosion and ranking these as low, medium, or high. The OSMP documents 300 instances of 26 6 The OSMP was originally published in 2022, and although reissued in 2024, was not substantively 27 updated. 28 15 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 trail erosion within Waterdog, of which 45% on mapped trails and 18% on unmapped trails exhibited 2 moderate to severe erosion. (OSMP, pp. 31, 50.) The OSMP also notes that this was “not a 3 comprehensive inventory.” (OSMP, p. 47; see also PROS Plan, pp. 96, 101.) 4 72. The OSMP also identified approximately 50 stream crossings along existing trails and 5 recommended reducing this number by re-routing or consolidating these where feasible, and 6 decommissioning these with physical barriers to allow vegetation to recover. (OSMP, pp. 31, 37-38.) 7 73. The OSMP does not analyze potential impacts of recommended actions on sensitive 8 species and biological communities, and does not evaluate whether mitigation is necessary to prevent 9 significant impacts. There is no substantive analysis of the impacts of unauthorized trails and trail 10 modifications on sensitive native plants and wildlife, including habitat loss due to trail widening and 11 spidering, increased risk of collision or injury, and increased noise and human activity. Information 12 concerning sensitive plant species does not address location or frequency, and there is no analysis to 13 assess the proximity of trails to sensitive habitat, riparian areas, nesting or denning areas, bat roosts, 14 etc. There is also no analysis of the impacts of trails on wildlife using trails as travel corridors, or for 15 basking; snakes, lizards, or turtles, for example, could be run over by mountain bikers who fail to 16 notice them in time to slow down. 17 74. The OSMP does not assess potential environmental impacts caused by the ongoing 18 proliferation of unauthorized trails and trail modification activities, or impacts from increased trail 19 use by mountain bikes, such as trail widening and spidering. There is also no analysis of the impact of 20 trail erosion on sedimentation of Waterdog Lake and Belmont Creek and its tributaries, and no 21 information concerning the frequency and cost of dredging and soil movement necessary to maintain 22 these water bodies and connected culverts, or whether erosion is increasing as a result of extreme 23 storm events associated with climate change. The OSMP also provides no analysis of enforcement 24 strategies to prevent the continued construction and use of unauthorized trails, and the unauthorized 25 construction of mountain biking features on trails, from further exacerbating existing erosion and 26 maintenance backlogs. 27 75. In fact, the OSMP acknowledges that additional information and analysis is needed 28 16 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 before implementing proposed trail projects, stating that “protocol-level surveys for special-status 2 species with high or moderate potential to occur are recommended for any ground or vegetation 3 disturbing activities” (OSMP, p. 37), yet, such analysis has never been undertaken for the miles of 4 trails within Waterdog, including the “previously unmapped trails” that the OSMP states “can be 5 incorporated into City maps.” (OSMP, p. 51.) 6 76. In addition, while the OSMP recreation section includes a section on guidelines and 7 best management practices (BMPs) for trail construction and design (OSMP, pp. 54-59), this lists 8 general design features and technical considerations but does not evaluate potential impacts of any 9 specific trails or improvements, and does not provide evidence that BMPs will mitigate such 10 unspecified impacts. This discussion appears to suggest that BMPs could be used as a substitute for 11 project-level CEQA analysis and enforceable mitigation measures (OSMP, p. 58), raising concerns 12 that the City has no intention of tiering off the programmatic EIR or undertaking further CEQA 13 review of proposed trails and trail modifications. 14 77. The OSMP also indicates that certain unauthorized, or previously unmapped, trails 15 will be authorized through the adoption of the Plan, including one that cuts through the Belmont 16 Creek riparian area at the western side of Waterdog open space. There is no analysis of the potentially 17 significant impacts of this trail on biological resources, soil erosion, or water quality. (OSMP, p. 51.) 18 78. In addition, while the PROS Plan recommends formalizing the use of volunteer 19 programs for trail maintenance, it does not examine past issues with this program, such as inadequate 20 training and supervision. For example, volunteers have at times added mountain biking features and 21 stream crossings to trails, or cut vegetation to improve clearance for bicycles rather than repairing 22 damage, and have performed unauthorized work to reopen trails that were closed due to prevent 23 severe erosion. Further analysis is needed to ensure that volunteer programs are properly supervised 24 and do not simply sanction unauthorized or poorly planned trail modifications. 25 79. The PROS Plan also provides no additional environmental impact analysis beyond that 26 contained in the OSMP, but simply summarizes and restates this information in the various sections 27 addressing open space conditions, objectives, policies, recommendations, and priorities 28 17 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF F. The EIR Addendum to the 2017 General Plan Programmatic EIR. 1 80. The EIR Addendum also provides no environmental impact analysis of specific 2 actions recommended by the OSMP and PROS Plan. 3 81. Generally, an EIR Addendum is used to amend a previously certified EIR when some 4 changes or additions are necessary but there are no substantial changes to the project, changed 5 circumstances, or new information indicating new significant environmental effects or a substantial 6 increase in the severity of previously identified significant effects. (Cal. Code Regs., tit. 14, §§ 15162, 7 15164.) 8 82. The EIR Addendum identifies the City’s 2017 General Plan EIR as the previously 9 certified EIR to which the addendum applies. The 2017 EIR identified the City’s general plan as the 10 project under review, while the EIR Addendum identifies the PROS Plan as the project. The projects 11 overlap geographically. 12 83. The 2017 General Plan EIR is a programmatic EIR that “does not assess site-specific 13 impacts” and states that “[a]ny future development project made possible by the Proposed Project will 14 be subject to individual, site-specific environmental review, as required by State law.” (Draft EIR at 15 1-1; see also Final EIR at 1-1.) 16 84. The EIR Addendum enumerates objectives and policies of the PROS Plan, but does 17 not analyze the potential impacts of these policies. (EIR Addendum, pp. 13-15.) For example, Policy 18 P.3 articulates the following directives: “Align or relocate, modify trails to avoid impacting sensitive 19 habitats such as wetlands and areas where endangered species are present. Avoid aligning trails along 20 the boundaries of sensitive habitats.” However, there is no analysis of any potential impacts 21 associated with relocating or modifying existing trails. The succeeding impact analysis simply asserts, 22 without substantial evidence, that such policies will reduce or eliminate any significant impacts. 23 85. The EIR Addendum also acknowledges that the PROS Plan and OSMP includes 24 specific recommendations for implementing trail improvements and modifications, formalizing 25 volunteer restoration programs, implementing wildfire fuel reduction treatments, improved 26 management of invasive weeds, and restoration of native plant communities, none of which are 27 28 18 VERIFIED PETITION FOR WRIT OF MANDATE [CEQA], COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1 clearly described or analyzed to identify potentially significant impacts. (EIR Addendum, p. 21.) 2 86. The EIR Addendum extends the program level analysis of the 2017 EIR to the PROS 3 Plan, but does not provide a site level analysis of potential impacts of specific actions to be 4 implemented under the OSMP and PROS Plan. 5 87. Section 4.3 of the 2017 EIR addressed the General Plan’s impacts to Biological 6 Resources and acknowledges that the impact analysis did not include any field studies or research but 7 relied on existing data sources and literature about the area. (2017 EIR at p. 4.3-30.) The 2017 EIR 8 did not examine the impacts of new trails or trail modifications on biological resources within 9 Waterdog. 10 88. The EIR Addendum identifies several sensitive plants and wildlife species that may 11 occur within the project area but were not considered in the 2017 EIR, but assumes that the program 12 level analysis of the 2017 EIR can be extended to these species. However, there is no site specific 13 analysis or action-specific analysis to identify the potential impact of new trails and trail 14 modifications on any sensitive species and there are no mitigation measures recommended to prevent 15 such impacts. 16 89. The impact analysis also fails to examine the potential for increased recreational 17 activities and night biking to impact mountain lions, a CESA candidate species, by interfering with 18 their use of the area as a wildlife travel corridor, instead conjecturing that they “would simply move 19 on to another, more suitable part of their range.” (EIR Addendum, p. 41.) The impact analysis 20 concludes incomprehensibly and without evidence that any impacts on wildlife, including mountain 21 lions, would be less than significant. There is no substantive analysis of significance criterion (a), 22 which is supposed to evaluate whether the project would “have a substantial adverse effect, either 23 directly or through habitat modification on any species identified as a candidate, sensitive, or special 24 status species ….”, or criterion (d), which evaluates whether the project w