1 INTRODUCTION

2 With this lawsuit, Petitioner NO NEW GAS NOVATO (“Petitioner”), an

3 unincorporated association of Novato citizens, challenges the March 9, 2021 final actions by
4 Respondent CITY OF NOVATO (“City”) adopting a Mitigated Negative Declaration pursuant
5 to the California Environmental Quality Act (“CEQA”), Pub. Resources Code § 21000 et seq.,
6 and granting a use permit and design review approval for the “Costco Fuel Center Project,” a
7 14-pump gas station with three underground fuel storage tanks located adjacent to an existing
8 Costco Wholesale facility at 300 Vintage Way in the Vintage Oaks shopping center in the City.
9 The owner and proponent is Real Party In Interest COSTCO WHOLESALE
10 CORPORATION (“Costco”). Concurrently with the Project, the City proposes to construct
11 certain traffic improvements to Rowland Boulevard adjacent to the Vintage Oaks center which,
12 together with the Costco Fuel Center, are referred to herein collectively as “the Project.”
13 Petitioner contends the City prejudicially abused its discretion by relying on the Mitigated
14 Negative Declaration (“MND”) in lieu of preparing a full environmental impact report (“EIR”)
15 for the Project. Under CEQA, if there is substantial evidence in the administrative record before
16 a public agency that a proposed project may have a significant impact on the environment, the
17 agency must prepare an EIR, even if other substantial evidence shows the project will have no
18 such impact. In this case, there is substantial evidence in the record before the City that the
19 Project not only may but will have several significant environmental effects, most notably in the
20 areas of air quality, biological resources, geology/soils, greenhouse gas emissions, land use
21 planning, and cumulative impacts. The City therefore had a mandatory duty under CEQA to
22 prepare and circulate an EIR before approving the Project.
23 Petitioner accordingly seeks a peremptory writ of mandate under Code of Civil
24 Procedure section 1094.5 and Public Resources Code section 21168 commanding the City to set
25 aside its approvals, and to reconsider its actions after preparing and circulating a draft EIR for
26 public review and comment in accordance with CEQA. Petitioner further seeks a stay of the
27 effect of the City’s actions during the pendency of these proceedings. Finally, Petitioner seeks an
28

M. R. Wolfe & Associates, PC

580 California Street, Ste 1200 PETITION FOR WRIT OF MANDATE
San Francisco, CA 94104
(415) 369-9400
No New Gas Novato v. City of Novato
mrwolfeassociates.com Case No.
-1-
 1 award of costs and attorneys’ fees under Code of Civil Procedure section 1021.5, together with
2 any other relief the Court deems necessary and proper.
3 In support whereof, Petitioner alleges:
4 PARTIES
5 No New Gas Novato
6 1. Petitioner No New Gas Novato is an unincorporated association of homeowners,
7 residents, and business owners living in the City of Novato. No New Gas Novato’s
8 organizational purposes include advocating for environmentally responsible land use planning
9 and policy in the context of fighting global climate change, as well as diligent enforcement of
10 planning and environmental laws in Novato.
11 2. No New Gas Novato and its constituent members, including Novato residents
12 Lily Cohen, David Fiol, Patricia Maher, Kevin Morrison, Patrica Ravitz, Susan Stompe, and
13 Silke Valentine, maintain a direct and regular geographic nexus with the City of Novato and/or
14 the Project site, and will suffer direct harm as a result of any adverse environmental impacts
15 caused by the Project.
16 3. Members and/or constituents of No New Gas Novato presented oral and written
17 comments in opposition to the Project either prior to or during public hearings culminating in
18 the City Council’s March 9, 2021 final approval actions, and either raised or supported all claims
19 and issues presented herein.
20 City of Novato
21 4. Respondent City of Novato is a general law city situated in Marin County. It is the
22 government entity responsible for regulating and controlling land use within its territory.
23 5. At all times relevant to this Petition, the City served as the “lead agency” under
24 CEQA responsible for evaluating the potential environmental impacts of the Project before
25 approving it.
26 6. The City of Novato is the proponent and developer of the improvements to
27 Rowland Boulevard approved concurrently with the Costco Fuel Facility in reliance on the
28 MND.

M. R. Wolfe & Associates, PC

580 California Street, Ste 1200 PETITION FOR WRIT OF MANDATE
San Francisco, CA 94104
(415) 369-9400
No New Gas Novato v. City of Novato
mrwolfeassociates.com Case No.
-2-
 1 Costco Wholesale Corporation
2 7. Petitioner is informed and believes that Real Party In Interest Costco Wholesale
3 Corporation is a Washington corporation maintaining its principal place of business in Issaquah,
4 Washington. Petitioner is informed and believes that Costco Wholesale Corporation is an owner
5 and/or proponent of the Project described, and is an applicant for and recipient of the land use
6 entitlements and approvals described herein.
7 Real Party In Interest Does 1 through 25, Inclusive
8 8. Petitioner currently does not know the true names and capacities of entitlement
9 recipients or Project owners and/or proponents DOES 1 through 25 inclusive, and therefore
10 names them by such fictitious names. Petitioner will seek leave from the court to amend this
11 petition to reflect the true names and capacities of DOES 1 through 25 inclusive if and when
12 ascertained.
13 JURISDICTION & VENUE
14 9. This action is brought pursuant to the writ of mandate provisions of Code of
15 Civil Procedure section 1094.5, and the judicial review provisions of Public Resources Code
16 section 21168. Venue is proper in Marin County under Code of Civil Procedure section 395.
17 FACTUAL BACKGROUND
18 10. The Project site is located within the Vintage Oaks Shopping Center adjacent to
19 an existing Costco Warehouse facility in Novato. The Project involves the construction of a gas
20 station, including an approximately 10,000-square-foot fuel pump canopy, 14 fuel dispensers
21 accommodating 28 fueling positions, three (3) 40,000-gallon gasoline underground storage
22 tanks(UST), one (1) 1,500-gallon additive UST, a 125 square-foot controller enclosure,
23 landscaping and ancillary improvements, and modifications to add a southbound left turn lane
24 for vehicles turning from Vintage Way into the existing Costco site, and to otherwise
25 reconfigure components of Rowland Boulevard along the eastern boundary of the Vintage Oaks
26 shopping center.
27 11. In 2020, Costco applied to the City for land use entitlements for the Project,
28 including a use permit and design review approval.

M. R. Wolfe & Associates, PC

580 California Street, Ste 1200 PETITION FOR WRIT OF MANDATE
San Francisco, CA 94104
(415) 369-9400
No New Gas Novato v. City of Novato
mrwolfeassociates.com Case No.
-3-
 1 12. On October 17, 2020, following public hearings, the City’s Design Review
2 Commission voted to recommend that the Planning Commission and City Council approve the
3 design aspects of the Project.
4 13. On February 22, 2021, the City’s Planning Commission held a public hearing on
5 the proposed MND and Project. Before and/or during the hearing, Petitioner and other
6 members of the public presented oral and/or written comments objecting to the Project and the
7 City’s reliance on the MND. After closing the public hearing, a majority of the Planning
8 Commission voted to recommend adoption of the MND and approval of the Project by the
9 City Council.
10 14. On March 9, 2021, the City Council held a public hearing on the proposed MND
11 and Project. Before and/or during the hearing, Petitioner and other members of the public
12 presented oral and/or written comments objecting to the Project, presenting evidence and
13 expert testimony that the Project would have significant environmental impacts, and asserting
14 that a full EIR was required in order for the City to approve the Project. After closing the public
15 hearing, a majority of the City Council enacted resolutions adopting the MND and separately
16 approving both the Costco Fuel Center and Rowland Boulevard Improvements.
17 15. On March 10, 2021 the City posted a Notice of Determination with the Marin
18 County Clerk in accordance with CEQA, declaring that the Project would have no significant,
19 unmitigated environmental impacts.
20 CLAIM FOR RELIEF
(Violation of CEQA – Failure to Prepare Environmental Impact Report)
21
22 16. Petitioner here incorporates by reference all preceding paragraphs in their entirety.
23 17. At all times relevant to this action the City was the “Lead Agency” responsible for
24 the review and approval of the Project under Public Resources Code section 21067.
25 18. Under Public Resources Code section 21080(d), if there is substantial evidence in
26 light of the whole record before a lead agency that a project it intends to carry out or approve
27 may have a significant effect on the environment, the lead agency must prepare an EIR.
28

M. R. Wolfe & Associates, PC

580 California Street, Ste 1200 PETITION FOR WRIT OF MANDATE
San Francisco, CA 94104
(415) 369-9400
No New Gas Novato v. City of Novato
mrwolfeassociates.com Case No.
-4-
 1 19. Under Public Resources Code section 21080(c)(1), a lead agency may adopt a
2 negative declaration or mitigated negative declaration for a project, only if an initial study shows
3 there is no substantial evidence in light of the whole record before the agency that the project
4 may have a significant effect on the environment. If a lead agency is presented with a “fair
5 argument” that a project may have a significant effect on the environment, the lead agency shall
6 prepare an EIR, even though it may also be presented with other substantial evidence that the
7 project will not have a significant effect. No Oil, Inc. v. County of Los Angeles (1974) 13 Cal. 3d 68;
8 14 Cal.Code.Regs. § 15064(f)(1).
9 20. For purposes of CEQA, “substantial evidence” is defined as including: “facts,
10 reasonable assumptions predicated upon facts, and expert opinion supported by facts.” 14
11 Cal.Code.Regs § 15064(f) (5). Thus, if there is disagreement among expert opinion supported by
12 facts over the significance of an effect on the environment, the lead agency “shall treat the effect
13 as significant and shall prepare an EIR.” Id. at subd. 15064(g).
14 21. There is substantial evidence in light of the whole record before the City that the
15 Project, including both the Costco Fuel Facility and Rowland Boulevard Improvements, not only
16 may but will have significant direct, indirect, and cumulative effects on the environment, in areas
17 including but not limited to air quality, biological resources, geology/soils, greenhouse gas
18 emissions, and land use planning. There is substantial evidence in the form of facts, reasonable
19 assumptions predicated upon facts, and expert opinion supported by facts that the Project will
20 have these and other significant adverse direct, indirect, and cumulative environmental effects.
21 The City therefore had a mandatory duty under CEQA to prepare and circulate a full EIR for the
22 Project before taking any action to approve it.
23 22. The City therefore prejudicially abused its discretion by approving the Project in
24 reliance only on a MND, by failing to proceed in the manner required by CEQA, and by
25 adopting findings that are not supported by substantial evidence in the record.
26 EXHAUSTION OF ADMINISTRATIVE REMEDIES
27 23. This action is brought consistent with the requirements of Code of Civil
28 Procedure section 1094.5 and Public Resources Code sections 21168 and 21177. Petitioner

M. R. Wolfe & Associates, PC

580 California Street, Ste 1200 PETITION FOR WRIT OF MANDATE
San Francisco, CA 94104
(415) 369-9400
No New Gas Novato v. City of Novato
mrwolfeassociates.com Case No.
-5-
 1 and/or its constituent members objected to the City’s approval of the Project orally and/or in
2 writing prior to the close of the final public hearing on the Project. Petitioner and/or other
3 organizations and individuals raised or affirmed each of the legal claims asserted in this petition
4 orally or in writing prior to the close of the final public hearing on the Project.
5 INADEQUATE REMEDY AT LAW
6 24. Petitioner declares that it has no plain, speedy, and adequate remedy in the
7 ordinary course of law for the improper action of the City.
8 NEWLY PRODUCED EVIDENCE
9 25. In accordance with Code of Civil Procedure section 1094.5(e), Petitioner may,
10 prior to or during the hearing on this petition, offer additional relevant evidence that could not,
11 in the exercise of reasonable diligence, have been produced at the administrative hearing.
12 ATTORNEYS FEES
13 26. Petitioner is entitled to recover attorneys’ fees as provided under Code of Civil
14 Procedure section 1021.5 if it prevails in this action and the Court finds that a significant benefit
15 has been conferred on the general public or a large class of persons, and that the necessity and
16 burden of private enforcement is such as to make an award of fees appropriate.
17 PRAYER
18 WHEREFORE, Petitioner prays for entry of judgment as follows:
19 1. For a peremptory writ of mandate directing the City:
20 (a) to set aside its actions taken March 9, 2021 adopting the MND and granting a use
21 permit and design review approval for the Project based on findings that the Project will have
22 no significant unmitigated environmental impacts; and
23 (b) to comply fully with CEQA in any subsequent action to approve the Project;
24 2. For an order staying the effect of the City’s actions pending the outcome of this
25 proceeding.
26 3. For a preliminary and permanent injunction directing the City and Costco to cease
27 and refrain from engaging in any future actions predicated upon the approval actions challenged
28 herein until the City comes into compliance with applicable law.

M. R. Wolfe & Associates, PC

580 California Street, Ste 1200 PETITION FOR WRIT OF MANDATE
San Francisco, CA 94104
(415) 369-9400
No New Gas Novato v. City of Novato
mrwolfeassociates.com Case No.
-6-
 1 4. For costs of suit.
2 5. For an award of attorneys’ fees.
3 6. For other legal or equitable relief that the court deems just and proper.
4
5 Dated: April 7, 2021 M. R. WOLFE AND ASSOCIATES, P.C
6
7
By: ____________________________
8
Mark R. Wolfe
9 John H. Farrow
Attorney for Petitioner
10 NO NEW GAS NOVATO
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

M. R. Wolfe & Associates, PC

580 California Street, Ste 1200 PETITION FOR WRIT OF MANDATE
San Francisco, CA 94104
(415) 369-9400
No New Gas Novato v. City of Novato
mrwolfeassociates.com Case No.
-7-