Monday, January 23, 2012

Court rejects city's vindictive cost claim

Recall that the City Attorney hit us with a cost claim of more than $52,000 after the court certified the city's EIR on the Bicycle Plan. We of course contested the claim, which was punitive and in retaliation for our successful litigation forcing the city to do an EIR on the Bicycle Plan. In a tentative ruling (below in italics) before tomorrow's hearing on the matter, Judge Kahn agrees with our objections, completely rejecting the city's claim.

Recall too that City Attorney Dennis Herrera admitted during his campaign for mayor that he advised the city to do an EIR on the Bicycle Plan before it was implemented on city streets. Herrera was overruled---probably by Mayor Newsom---and the city began implementing the Plan, which is when we asked the court for an injunction that was granted by Judge Warren. Even though he advised doing an EIR in the beginning, Herrera's department proceeded to wage a relentless, meritless, expensive, and ultimately futile legal battle to be allowed to implement the 500-page Bicycle Plan without any environmental review, culminating in the vindictive cost claim against us.

The entirety of the City's costs memorandum is stricken. The proceedings on the return are not separate and independent from the proceedings that led up to the return and thus the City is not entitled as a matter of right to costs because it is not a "prevailing party" as that phrase is defined in Code of Civil Procedure section 1032(a)(4). Assuming without deciding that the court has the authority to award costs in its discretion per section 1032(a)(4), the court declines to do so because petitioners were the prevailing party on the initial writ and petitioners elected to prepare the record on the return, and an award of costs is fundamentally unfair given that petitioners were never provided with paper copies and the City does not dispute that the electronic version had little or no utility. Moreover, an award of costs to the City under these circumstances could be viewed as having a deterrent effect on future CEQA petitioners, which is contrary to the enforcement provisions of CEQA, and the City's hourly rates for paralegal time appear to be significantly beyond the actual costs incurred by the City.

And earlier post on Herrera and the Bicycle Plan.

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At 6:02 PM, Blogger Mario said...

As much as I disagree with CEQA and wish that bicycle improvements weren't held up by one person, it's the fault of the system, not of Rob Anderson.

It's pretty ugly for the city to counter-sue, and they shouldn't have done it. They should have spent their resources in trying to get an exemption in CEQA for pedestrian, cycling and transit projects. Then Rob Anderson wouldn't have had merit to sue for an EIR.

The city failed cyclists here, and it also failed its citizenry.

At 6:44 PM, Blogger Rob Anderson said...

CEQA only exempts projects that can't possibly have an effect on the environment, which doesn't include a Bicycle Plan that will take away traffic lanes and street parking to make bike lanes. Traffic is the most important environmental issue for projects in San Francisco, whether it's a hotel, an apartment building, or a bicycle plan. For hotels and housing, the city wants to know how much parking will be provided and how much traffic will be generated, so that the impact can be determined. For the Bicycle Plan, the EIR had to judge the impact of removing traffic lanes from busy streets to make bike lanes.

The city failed cyclists by not doing the environmental review in the first place, which is what the law clearly requires. Then it failed cyclists and the city by not stopping the litigation after the injunction and doing the EIR at that point, which would have saved the city a lot of time---for better or worse, the plan could have been implemented by now---and money.

Then, after the city began work on the court-ordered EIR, the city went back to the judge three times to try to lift the injunction before the EIR was finished and certified by the court.

At 11:36 AM, Anonymous Anonymous said...

Traffic is the most important environmental issue for projects in San Francisco...

More than toxic waste disposal? More than destruction of habitat? Your use of absolutes is brutal.

At 1:52 PM, Blogger Rob Anderson said...

Not many projects involve toxic waste or habitat in San Francisco. Traffic is the biggest issue for most projects, especially the Bicycle Plan.

Nothing to say about how the City Attorney is using these trumped-up cost motions to bully plaintiffs in environmental cases? That's what the post is about, but you're so desperate to score debating points that your comment is irrelevant and of no interest.

At 11:55 AM, Blogger Rob Anderson said...

The order is now final, since Judge Kahn signed it yesterday, and the city didn't show up to oppose it. The city's CEQA lawyers are all breathing a sigh of relief, as the City Attorney has been making these retaliatory cost claims in other environmental litigation. The court's rejection of the cost claim against us doesn't mean that other judges have to do the same, but it makes it more likely.

I'd like to see some justification for the cost-claim policy levied against CEQA litigators by our allegedly green City Hall.


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