The URL can be used to link to this page

Home My WebLink AboutStaff Report 211-10TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: PLANNING AND COMMUNITY ENVIRONMENT DATE: APRIL 12, 2010 CMR: 211:10 REPORT TYPE: STUDY SESSION SUBJECT: Review and Comment on Revised Draft Program EIR for the Bay Area to Central Valley High Speed Train and Monthly Update on City Activities Related to the California High Speed Rail Project RECOMMENDATION Staff recommends that the Council provide comments on the outline for the City's comments on , . ..... the Revised Draft Program EIR for the Bay Area to Central Valley High Speed Train proj ect and direct staff to return with a draft final comment letter for Council approval on April 19. BACKGROUND On November 4, 2008, the voters of California approved initial bond funding for the California High Speed Rail Authority (CHSRA) detailed environmental studies and plans for the construction of high speed rail from Los Angeles to San Francisco, via San Jose and the Caltrain corridor. The HSRA consulting team for the San Francisco to San Jose Project Level Environmental Impact Report (EIR) began work in early 2009. On March 30, 2009, Council approved a "scoping" comments letter to forward to CHSRA and a Memorandum of Understanding to join the Peninsula Cities Consortium (PCC). A City Council subcommittee was appointed and the City has established a web page to keep the community informed about the project at: www.cityofpaloalto.orglcahsr. On May 18, 2009, the City Council adopted Guiding Principles (Attachment D) to provide direction to the City'S High Speed Rail Ad Hoc Committee. On March 15, 2010, the Council designated the Ad Hoc Committee a Standing Committee of the City Council. DISCUSSION This report provides information on the review of the Bay Area to Central Valley Revised Draft Program EIR and an update regarding activities related to the High Speed Rail project that have been undertaken since the last report on March 15. Bay Area to Central Valley Revised Draft Program EIR In August 2008, a group of petitioners filed a lawsuit in Sacramento County Superior Court claiming the Authority's Final Bay Area to Central Valley Program Environmental Impact CMR: 211:10 Page 1 of4 12 Report (PEIR) (Attachment F) violated the California Environmental Quality Act (CEQA) in numerous ways. (Town of Atherton, et aI., v. California High-Speed Rail Authority, et al). On August 26, 2009, the Court mled that the Program EIR required revision and recirculation in the several areas to comply with CEQA related to the San Jose to Gilroy section and noise and vibration impacts. On December 3,2009, HSRA rescinded the certification of the 2008 Program EIR and directed Authority staff to prepare the necessary revisions to the PEIR and circulate them in accordance with CEQA for public comment. On March 4, 2010, the HSRA released a Revised Draft Program Environmental Impact Report (Attachment E). A 45-day public comment period began on March 11, 2010, and will end on April 26, 2010. (Palo Alto has formally requested a 30-day extension of the comment period, but has not received a reply from HSRA). The document includes the changes made in response to the court decision, focused on the Gilroy-San Jose alignment and alternatives to using the Union Pacific Railroad right-of-way. It does respond in detail to the noise and vibration issues cited in the Court mling. Included in this packet is a memorandum from the City Attorney which describes a framework for providing comments on the Revised Program EIR, and implications of the availability of new information to reopen comments on the full 2008 Program EIR. Staff has retained an environmental consulting firm to assist with the preparation of comments. A draft of the outline for comments on the Revised PEIR is provided as Attachment A. The outlin~ includes all of the potential subject areas to be covered by the City's comments on the revised draft PEIR as well as the original Program EIR. Staff requests that the Council provide comments on the outline including any other areas for comment. Staff will then prepare a detailed comment letter for Council review and approval on April 19. To facilitate discussion, several documents are attached to this report or links to documents related to High Speed Rail are provided as background for the Council's review of the Revised PEIR, including: • A copy of the Cities of Menlo Park and Atherton lawsuit challenging the validity of the original Program EIR. Many of the reasons for challenge might be similar to reasons Palo Alto might challenge the Revised Draft Program EIR (Attachment B). • A copy of the decision on that lawsuit, finding deficiencies in the analysis for the Gilroy- San Jose segment and related to vibration impacts (Attachment C). The Planning and Transportation Commission discussed the Revised PEIR on April 7 and prepared comments for Council's consideration. A memo summarizing the Commission's discussion and the PTC draft minutes will be provided to the City Council at-places on April 12. San Francisco to San Jose HST Preliminary Project Alternatives Analysis Report The Preliminary Alternatives Analysis (AA) Report was released for circulation and presented to the HSRA Board on April 8. CMR: 211:10 Page 2 of4 The City has retained the engineering film Hatch Mott MacDonald to conduct an independent peer review of technical conclusions in the AA, such as tunneling feasibility and other below grade options, costs, and railroad operations. The scope of work includes full technical review and participation in meetings with the Ad Hoc Committee, City Council and a community meeting. Staff will schedule two community meetings prior to the City Council finalizing comments on the report. Context Sensitive Solutions (CSS) The Peninsula Rail Program (PRP) adopted Context Sensitive Solutions, a dynamic, two-way collaborative process, to support the active involvement of Peninsula communities in the planning and design of California High-Speed Rail and Caltrain 2025 projects . . CSS is a collaborative and interdisciplinary approach that involves all stakeholders to develop a transportation project that fits its physical setting and preserves scenic, aesthetic, historic, and environmental resources while maintaining safety and mobility. CSS offers an opportunity for communities, stakeholders, and project sponsors to collaborate to define key values, priorities, measures of success, and context considerations. The PRP has prepared a CSS Toolkit which will guide the process, and has posted the Toolkit on its website at http://www.caltrain.com/peninsularailprogram csstoolkit.html. Next StepslPlanned Activities The next milestones for the Project are: Release of San Francisco to San Jose Preliminary Alternatives Analysis -April 8, 2010 End comment period for Bay Area to Central Valley Revised PEIR -April 26, 2010 Draft EIRIEIS -First Quarter of2011 Final EIRIEIS -End of2011 POLICY IMPLICATIONS The recommendations in this report are consistent with existing Council policy direction related to the California High Speed Rail Project. ENVIRONMENTAL REVIEW The recommendations in this report do not constitute a project requiring environmental review under the California Environmental Quality Act. ATTACHMENTS A. Draft Outline for Comments on Bay Area to Central Valley Draft Revised Program EIR B. Menlo Park!Atherton Litigation v. High Speed Rail Authority C. Court Decision re: Menlo Park! Atherton Litigation D. Guiding Principles E. Revised Draft Program EIR for Central Valley to Bay Area High Speed Rail Project, March 2010 (Council only, available online at: http://v . .rww.cahighspeedrail.ca.gov/library.asp?p''9274 ) CMR: 211:10 Page 3 of4 F. 2008 Final Program EIR for Central Valley to Bay Area High Speed Rail Project (CDs for Council only, available online at: httn:11w\V\v.cahighspe.cdrailca. gov/l ihrary. asp ?pc:::927 4) COURTESY COPIES Nadia Naik, Californians for Responsible Rail Design (CAARD) Dominic Spaethling, California High Speed Rail Authority PREPARED BY: APPROVED BY: Deputy City Manager CITY MANAGER APPROVAL: CMR: 211:10 Page 4 of4 A ATTACHMENT A Outline for Comments on the Revised Draft Program EIR for the Bay Area to Central Valley High-Speed Train General Comments and Process • No scoping sessions or public meetings on the Second Program EIR/EIS were held anywhere on the Peninsula between San Jose and San Francisco, and Peninsula cities were absent from the Outreach Before Draft Program EIRiEIS process • Significant new information exists that makes the earlier Program EIR/EIS invalid and requires a recirculation of the document o The ridership and revenue modeling used for the analysis and alternatives comparison is flawed, particularly given the new information provided in the 2009 Business Plan update o New information on project impacts and alternatives is being discovered during the project-level environmental review for the San Francisco to San Jose and San Jose to Merced segments, and this new information may indicate new or increased impacts, and new feasible alternatives or mitigation measures o New alternatives have been suggested to the Union Pacific/Monterey Highway alignments o New information regarding the use of the Monterey Highway median for portions of the right-of-way results in new questions regarding noise, land use, property, traffic, and construction impacts o The recently announced project to conduct a seismic retrofit of the State Route 92 San Mateo highway bridge opens the possibility of placing a HST crossing in conjunction with that rebuilt bridge o The need to evaluate impacts from Union Pacific's refusal to share its right-of way opens up the possibility of considering new alternative alignments for not only the Pacheco Pass alignment but also the Altamont Pass alignment, including an Altamont Pass alignment that would run along State Route 84 through the East Bay rather than along the Union Pacific right-of-way. Project Description • Document fails to adequately describe the location of the project, including the proposed right-of-way and station locations, and the degree of uncertainty regarding these locations • Document fails to adequately indicate the extent the project would require acquisition of private property through eminent domain • Project description is internally inconsistent • Document fails to indicate exactly where grade separations would take place (all or only some of the existing intersections) and whether pedestrian crossings would be added Business Plan • Document fails to provide an explanation of the methodology used to calculate ridership figures • Document fails to include an explanation of what portions of projected ridership would occur regardless of whether the project was approved or regardless of the alignment alternative chosen • Document fails to include a full tabulation and explanation of project costs, methodologies for calculating costs, costs for each alternative and sub-alternative, costs for tunnels through developed urban areas, and costs for developing ridership • Document fails to include a tabulation of expected funding sources for the project • Document fails to address construction costs, including full economic cost of eminent domain • Document fails to address how nearby businesses would be affected during project construction, whether small businesses will survive, and how city tax revenues may be affected as a result Environmental Impacts and Mitigation Measures General Comments • Document identifies a Peninsula alignment and station locations, but fails to fully identify, analyze, and mitigate all Peninsula-related environmental impacts from that specific alignment and those specific station locations • Document fails to disclose or adequately analyze the project's potential impacts associated with ~he use of the Caltrain and/or Union Pacific shared right-of-way • Document fails to discuss the potential necessity of locating the project alignment away from the Union Pacific right-of-way, both in the San Francisco to San Jose segment and the San Jose to Gilroy segment, due to Union Pacific's refusal to share a right-of-way with the HST system • Mitigation measures used in the document are often inadequate, and in some cases so poorly described as to make it impossible to determine the feasibility of the mitigation measure • Document fails to address significance criteria within each local jurisdiction • Impact discussion focuses on a corridor 50 feet to either side of the existing corridor or 50 feet to either side of the centerline of the new HST alignments, when the document should focus on a wider corridor for impacts, such as 500 feet to either side • Document fails to indicate how the HST would affect Caltrain service (both during construction and operation), and whether Caltrain would be able to continue providing express service • Document uses flawed assumptions in determining impact significance • Document fails to address how grade separations will affect traffic, air emissions, noise, land use (separation of communities), and aesthetics Aesthetics • Document fails to address the visual impacts of 45 miles of sound walls proposed as mitigation for noise impacts • Document fails to address the visual impacts of elevated structures • Document fails to address shade and shadow impacts of sound walls and elevated structures • Document fails to adequately indicate how sound walls would address aesthetics impacts for elevated railway, and fails to indicate height of sound walls • Document fails to address visual impact of new utility lines • Document fails to address how the absence of screening trees along certain segments affects the impact significance of new utility poles and wires • Document fails to address how any new vehicle or pedestrian overpasses would affect the visual environment • Document fails to address whether the project would include nighttime lighting, and what impact such lighting would have on neighboring uses, particularly two-story residences Agriculture • Document fails to adequately address the loss of prime agricultural land, particularly if the proposed right-of-way must be relocated away from the Caltrain/Union Pacific right-of-way within the San Jose to Gilroy corridor; this relocation could be necessitated by Union Pacific's refusal to share a right-of-way with the HST system • Document fails to address the indirect loss of agricultural lands due to induced sprawl development at proposed station locations Air Quality and Greenhouse Gases • Document fails to fully disclose or adequately analyze the project's potential air quality impacts, including the production of greenhouse gases and contribution to global climate change • Document fails to adequately compare air quality and greenhouse gas emissions between the alternatives (elevated, at grade, below grade, underground) • Document uses flawed assumptions in the impact analysis Biological Resources • Document fails to address the potential loss of valuable wildlife habitat, including wetlands, particularly if the proposed right-of-way must be relocated away from the Caltrain/Union Pacific right-of-way anywhere along the San Francisco to Gilroy corridor; this relocation could be necessitated by Union Pacific's refusal to sh~re '" right of-way with the HST system • Document fails to address impacts to trimming or removal of mature or heritage trees along project alignment • Document fails to address impacts to E1 Palo Alto, the iconic heritage redwood tree in Palo Alto Cultural Resources • Document fails to address impacts to historic resources and Native American archaeological sites along the alignment Environmental Justice • Document uses incorrect methodology for analysis Geology and Seismicity • Document fails to adequately address potential impacts and risks associated with the rail line crossing several active and potentially active fault zones • Document fails to adequately address impacts resulting from a major earthquake and associated strong ground motion Hazards and Hazardous Materials • Document fails to address the public health and safety impacts due to possible derailments on the Union Pacific, Caltrain, or HST lines and subsequent collisions with high speed trains • Document fails to address other possible collisions with trains • Document fails to address conflicts with underground toxic plumes Hydrology and Water Quality • Document fails to address impacts of trenching or tunneling on groundwater during construction, which applies to portions of the Altamont Route Alternatives • Document fails to address impacts on creek flow, creek stability, and riparian habitat • Document fails to adequately address impacts of shallow groundwater on operations and maintenance • Document fails to adequately address the impacts on project operations from flooding Land Use and Planning • Document fails to discuss direct and indirect impacts of potential "sprawl" development as a result of the project, particularly near the locations of proposed stations • Document fails to address the displacement of residents and businesses if the proposed right-of~way must be relocated away from the Caltrain/Union Pacific right~of-way; this relocation could be necessitated by Union Pacific's refusal to share a right-of-way with the HST system • Document fails to address land use impacts through the division of existing communities, either through the expansion of the existing Caltrain/Union Pacific right of-way, the elevation of structures within the Caltrain/Union Pacific right-of-way, or the relocation of the proposed right-of-way away from the Caltrain/Union Pacific right-of way; this relocation could be necessitated by Union Pacific's refusal to share a right-of way with the HST system • Document fails to address project impacts due to potential incompatibility with existing or planned uses, inconsistency with zoning or general plan designations, and incompatibility with existing or proposed development plans • Document fails to address impacts to local businesses, particularly during construction • Document fails to address impacts to property values due to aesthetics, noise, vibration, circulation, and daily train operations • Document incorrectly states that project corridor would have a "high" compatibility rating, when the document states that single-family residential homes have a "low" compatibility rating • Document fails to address how elevating the railway could create a physical barrier that divides a community Minerals • No issues identified at this time Noise and Vibration • Document fails to adequately address the impact significance of noise and vibration impacts, and fails to adequately mitigate these impacts. • Document categorizes noise and vibration impacts as "low-level", "medium-level", and "high-level", and establishes four noise-related thresholds of significance, but does not indicate whether the project impacts would exceed these thresholds and be considered significant impacts • Document fails to adequately explain how the proposed mitigation measures would address noise and vibration impacts and reduce these impacts to a less than significant level • Document addresses estimated noise levels on a region-wide basis, and does not quantify anticipated noise levels on the proposed alignment or station locations • Document fails to address noise and vibration impacts during construction • Grade separation would introduce inclines -document fails to address how such inclines would affect noise and vibration impacts of HST, Caltrain, and freight train operations, particularly when climbing up an incline • Document fails to quantify the noise level increase over existing conditions • Document fails to address nightly track maintenance • Document fails to address how different design options (tunnel, below grade, at grade, elevated) affect noise impacts • Document fails to address how wind and weather patterns would affect noise impacts • Noise impact ratings should be indicated as "high" along most of the San Jose to San Francisco corridor due to dense residential development • Document addresses noise impacts from 186 mph operations, but does not address noise impacts for 220 mph speeds through Morgan Hill and Gilroy • Document fails to quantify noise reduction provided by sound walls, particularly given the presence of two-story residences and the possibility of an elevated railway • The proposed sound wall height appears to be inadequate to address noise impacts • Document fails to address impacts of sound walls on traffic noise for adjacent streets; vehicle noise may bounce off the sound wall and back out into the community Population and Housing • Document fails to evaluate project impact on the jobslhousing balance in the region Public Services • No issues identified at this time Recreation • Document fails to address impacts to park and recreational facilities -access, noise, visual impacts • Document does not accurately count/consider all of the parks and recreational facilities along the project route Transportation and Traffic • Document fails to address the transportation-related policies and plans of local jurisdictions • Document fails to identify impacts to streets during construction, including identification of detours and road closures • Document fails to address increased traffic and parking impacts in the vicinity of proposed stations • Document fails to address impacts to pedestrian and bicycle paths that intersect the proposed alignment • Document claims that Monterey Highway is underutilized, and that the loss of 2 of the 6 lanes will not significantly affect traffic in the area -the document fails to support these conclusions Utilities • Document fails to address the energy needs for the project, the quantity of electricity required, and what infrastructure (utility lines and substations) would be require? to bring the necessary power to the corridor • Document fails to address other potential utility needs for the project, and whether the infrastructure is present to accommodate the project's needs • Document fails to identify impacts of the relocation of all utilities within and crossing the right-of-way Cumulative Impacts • Document fails to address the cumulative impacts of proposed Caltrain improvements • Document fails to address the cumulative impacts of proposed roadway improvements along the entire corridor from san Francisco to Gilroy Alternatives • Document fails to include information on the environmentally superior alternative, thereby depriving the public of an opportunity to comment on the methodology used to identify that alternative • Document fails to analyze all alternatives at an equal level of analysis as required by NEPA (this issue relates to the previous Program EIR/EIS and not the current Revised Program EIR, and thus may not be germane to the current document under review) • Alternatives analysis is inadequate, inaccurate, incomplete, and biased o Analysis of Altamont Pass Alternatives inaccurately portrays the operational characteristics in a way that results in significantly underestimating the potential ridership of those alternatives o Document improperly and unfairly discounted and found infeasible the potential for the Altamont Pass Alternative to rebuild the Dumbarton Rail Bridge in a way that could be used by both the Caltrain Dumbarton Rail Project and the proposed high-speed train o Document overemphasizes the aquatic impacts of rebuilding the Dumbarton Rail Bridge and unfairly discounts the likelihood of being able to obtain environmental clearance o Document underestimates the aquatic, wetlands, and wildlife impacts of the Pacheco Pass Alternative's crossing of the Grasslands Ecological Area and discounts the difficulty of obtaining environmental clearance for such a crossing o Document improperly and unfairly overemphasizes the impacts of a corridor through the cities of Pleasanton and Fremont, while underestimating the impacts of a corridor along the San Francisco Peninsula o Document underemphasizes the impacts of running the corridor through portions of San Jose south of San jose's Diridon Station by not disclosing the absence of undeveloped land outside of the Union Pacific corridor south of that station • Document fails to adequately address alternative alignments within or along the Caltrans right-of-way and Highway 280 • Document fails to address an alternative where the HST alignment ends in San Jose, and then passengers transfer to Caltrain • Document fails to address alternatives that would reduce the number of tracks to less than four • Document provides a "low" or "medium" impact rating for segments that pass alongside residential development, when that rating should be higher Response to Comments • Responses are often perfunctory or conclusory, and not supported by substantial evidence LAW OFFICES OF STUART M. FLASHMAN STUART M. FLASHMAN (SBN 148396) 5626 Ocean View Drive 2 Oakland, CA 94618-1533 TEL/FAX (510) 652-5373 3 e-mail: stu@stuflash.com 4 JEFF HOFFMAN SBN: 225569 5 LA W OFFICE OF JEFF D. HOFFMAN 6 132 Coleridge Street, Suite B San Francisco, CA 94110-5113 7 Tele:ph?ne: (415) 285-7735 FaCSJmlle: (415) 920;.1731 ATTACHMENT B I C~~1./TIl!ErING r J !:Jaa:d Before Meeting ~ecelved at Meeting 8 Attorneys for Petitioners and Plaintiffs Town of Atherton et al" (Exempt from filiDg fees -Gov. Code §6103) 9 10 II SUPERIOR COURT OF THE-STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO 12 TOWN OF ATHERTON, a Municipal : 13 Corporation, PLANNING AND CONSERVATION LEAGUE. a California 14 nonprofit corporation, CITY OF MENLO PARK" a MUnicipal Corporation, 15 TRANSPORTATION SOLUTIONS DEFENSE AND EDUCATION FUND, a'California . 16 nonprofit corporation, CALIFORNIA RAIL FOUNDATION, a California nonprofit 17 cor,{'orat~o~, and BA YRAIL ~LIANCE. a Cahforrua nonprofit corporation, and other 18 similarly situated entities, Petitioners and Plaintiffs 19 v. 20 CALIFORNIA HIGH SPEED RAIL AUTHORITY, a public entity, and DOES 1-20~ 21 Res ondents and Defendants Case No.: .' VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE . AND DECLARATORY RELIEF [Public 'Resources Code §21168; Code of Civil Procedure §§.Hi60, 1994.5] 'PPTTTIf'ftJ FOR Wl? TT OF MANn A TP ANn rnll.lfPl A ThTT · '~. INTRODUCTION 2 1. PETITIONERS bring this action to challenge the decision of Respondent and Defendant 3 CALIFORNIA HIGH SPEED RAIL AUTHORITY ("CHSRA") to approve the Bay Area to 4 Central Valley High :Speed Train Project (hereinafter, "Project"), including specifically choosing 5 an alignment for the Project, without providing legally adequate review under the California 6 Envirenmental Quality Act Public Resources Code section 21000 et seq. ("CEQA"). 7 Respondent's actions are illegal as they violate CEQA and the California Code of Regulatiens, 8 Title 14, section 15000 et seq ("CEQAGuidelines"). 9 2. PETITIONERS allege that CHSRA approved the Project based on a Firial Prograrinnatic 10 Environmental Impact Report/Enviropmental Impact Study ("FPEIR,/S") that did not adequately 11 and accurately describe the Prpject, _ did not give adequate_ consideration to the Project' s impacts 12 -on the environment, failed to propose adequate mitigation measures to address the Preject's 13 signific~t -impacts, failed to provide a fair and adequate eonsidenition of feasible a1te~riatives·to _ 14 the appreved Project, andJailed to pro.vide adequate responseS.to comments on the Draft" . _- 15 Programmatic Enviro~ental Impact Report/Environmental Impact Study ("DPEIRlS") ]6 submitted by other public agencies, as well as by concerned organizations and individuals. -. 17 .3. The Project is part of a larger proposed legislatively.mandated plan to d~velop high -18 speed rail service betWeeri the cities of Los Angeles and San Francisco.. It follows on ·CHsRA's 19 earlier approval of an overall proposal for such high speed rail service, based on a broader 20 overall FPEIRIS. However, that FPEIRJS specifically left undetennined the route the high speed 21 rail project would take from the Central Valley to its. northwestern terminus of San Francisco.. - 22 The Project being challenged herein was intended to fill that gap. , '.,' 23 4. While the Pro)ect entailed many ~tudi~s, analyses, ai;ld choices~ perhaps the single biggest 24 cho~ce w~s betw~eri two major alternative a1ignm~nts: the "Pachec(> Alignment" ruoiling north " . . , .. ' .' , " 25 and westward from the Gentral V alley mai~ line south of Merced, through Pacheco Pass then 2"6 north through qUroy to. San Jese ~d then north and west along the San Francisco Peninsula to. 27 San Francisco, and the "Altamont Alignment" running north and westward from the Central 28 Valley main line north ef Modeste, through Tracy, through the Altamont Pass and acress the 2 PETITION FOR WRIT OF MANDATE AND COMPLAINT EaSt Bay, with one branch going south and westward to San Jose and a second branch going wes 2 and northward across San Francisco Bay to San Francisco. 3 5.' PETITIONERS allege that the CHSRA's consideration of these two major alternatives 4 was neither fair nor complete, .but, instead, improperly distorted the analysis o~benefits and 5 impacts, and ultimately of feasibility and desirability to unfairly and improperly bias the analysis 6 in favor of approving the Pacheco Alignment. 7 6. Respondent's actions will hann PETITIONERS, their members, and the public, by 8 causing serious environmental harm along the Pacheco Alignment route. That harm, because of 9 the inadequacy of the environmental review under CEQA. was neither properly disclosed nor ]0 adequately mitigated. In addition, it could have been avoided through choice of the Altamont 11 Alignment. 12 7. PETITIONERS seek this Court's peremptory writ of mandate ordering the CHSRA to 13 rescind its actions in approving the Project and certifying the FPBIRIS for the Project. " ,14 PETITIONERS also seek this Court temporary restraining order and,preliminary and permanent 15 injunction to prevent CHSRA from proceeding with implementing the Project in the absence of 16 adequate review under CBQA. PETITIONERS also seek this Court's declaration that the 17 PROJECT approval by CHSRA. violated CEQA. Finally" PETITIONERS, acting in the public 18 interest, seek an award of costs and of attorneys' fees under Code of Civil Procedure § 1 021.5 or 19 other applicable authority. 20 PARTIES 21 8. Petitioner TOWN OF ATHERTON is a municipal corporation, formed and existing 22 under the general laws of the State of California. ATHERTON lies directly aStride of the ' 23 proposed Pacheco Pass alignment down the San Francisco Peninsula. It and its citizens will 24 therefore be directly affected by CHSRA's decisions to certify the FPEIRIS for the Project and 25 approve the Pacheco Pass ali~nment as part of the Project. . 26 9. Pet~tioner PLANNING AND CONSERVATION LEAGUE is a public benefit nonprofit 27 California corporation, established and existing under the .laws of the State of California, 28 headquartered il;l Sacramento" California. PCL works, using the political and legal systems, to 3 I , enact and implement policies that protect and restore the California environment. PCL is an 2 affiliate of the National Wildlife Federation. 3 10. Petitioner CITY OF MENLOP ARK. is a municipal corporation, formed and existing 4 under the gener~llaws of the State of California. MENLO PARK. lies directly astride of the . . 5 proposed Pacheco Pass alignment down the San Francisco Peninsula. It and its citizens will . . 6 therefore be directly affected by CHSRA's decisions to certify the FPEIRJS for the Project and 7 approve the Pacheco Pass alignment as part of the Project. 8 11. Petition~r TRANSPORTATION SOLUTIONS DEFENSE AND EDUCATION FUND is 9 a California nonprofit public benefit corporation, headquartered in the Bay Area, established and 10. existing under the Jaws of the State of California as a regional advocate to promote transportatio 11 .solutions favoring transit over new highway capacity, development around transit stops ra,the~ . '. 12 than sprawl into the Bay Arear~ open ~paces, and more market-oriented pricing of private motor 13 .. vehicle travel. .TRANSDEF advocates on behalf oHts members and the public. at large for .. ' • • j ~. • .14 :effective regional pbinning,smart·growth, iIp.proved transit service, and'Cleaner air. TRANSDEF 15 has participated in the development of the 2001, 2005 and 2009 Bay Area Regional . ' 16 Transportation Plans and Transportation Improvement Programs. TRANSDEF has actively 17 engaged in numerous public agency proceedings involv~ng transportation and air quality issues, 18 including specifically the admfuistrative proceedings around the Project and its envir0IllD:ental 19 review under CEQA. 20 12. Petitioner CALIFORNIA RAIL FOUNDA~ION, based in Sacramento, is a California ~l nonprofit public benefit corporation, establishe4 and existing under the laws of the State of 22 California. CRF works to educ~te the public on rail and, bus technology and, prom()te cost-. 23 effective expansion of the state'~ public transp~rtatio~ services.. ," 24 13. Petitioner BA YRAIL ALLIANCE is a California nonprofit public benefit corporation, 25 established and existing under the lawtl of the State of California~ BA YRAIL works to build 26 public awarenes~ of and support for plans that "",ould improve regional passenger rail 27 infrastructure in the San Francisco Bay area, so as to improve the ,quality and convenience of the 28 4 PETITION FOR WRIT OF MANDATE AND COMPLAINT services that they support, and thereby iinprove the region's environmental characteristics and 2 quality of life. 3 14. PETItIONERS include in this action as co-petitioners and co-plaintiffs such other partie 4 whose interests and claims are substantially the same as those of the above-named petitioners 5 and p1aintiffs. Said additional petitioners and plaintiffs may be named individually by 6 amendment to this petition and complaint. 7 15. PETITIONERS and their ~embers/citizens'have,a direct and'beneficial interest in the 8 approval and implementatiop of a well-planned, efficient, and environmentally sensitive high 9 speed rail system within California and the· San Francisco Bay area, and more specifically in the 10 fully-informed, fair, and proper choice of alignment for the Project. 11 16. Respondent and Defendant CALIFORNIA HIGH SPEED RAIL AUTHORITY was 12 estab~shed as 'an independent state authority by the legislature in 1996 and charged with 13 planning, constructing and operating a high-speed train system to serve the Los Angeles to San 14 Francisco mainline route as well as other-major California cities along or cotmecting with that 15 mainline route. CHSRA is governed by a seven member Board of Directors (hereinafter, . 16. "Board"). CHSRA, its staff, and contractors and consultants working under its control and 17 direction, prep8.fed the DPEIRlS and the FPEIRlS for the Project, and the Board of CHSRA ,18 certified the FPEIRIS for the Project and gave final approval to the Project. 19 17. PETITIONERS are Wlaware of the true names and capacities of Respondents and 20 Defendants DOES 1 through 20, inclusive, and therefore sue those Respondents and Defendants 21 ll:llder fictitious names. PETITIONERS will amend their Petition and Complainfto show their 22 true names and capacities when the Respondents and Defendants have been identified and their 23 capacities ascertained. Each of the Respondents and Defendants is the agent, employee. or both 24 of every other Respondent and Defendant, and each performed acts on which this acti~n is based 25 within the course and scop·e of such Respondent's and Defendant's agency, employment, or both. 26 PETITIONERS are informed and believe, and therefore allege, that eac~ Respondent and 27 Defendant is legally responsible in some manner f~.r the events and happenings referred to 28 herein. 5 Pt:l'1'TTT('iJl.l JU"'Il1 UTl1 T'1' ()l< 1\6 A l\Tn A 'TP A l\Tl"\ ("!()1\,fDT A ThTT 2 3 4 GENERAL ALLEGATIONS 18. PETITIONERS have satisfied the requirements of Public Resources Code §21177. PETITIONERS and th~ir members/citizens/elected officials submitted oral and/or written comments to CHSRA, prior to the close of the public hearing before the approval of the Project, objecting to the approval of the Project. PETITIONERS, their members/citizens/elected ). 6 7 8 9 10 11 12 13 officials. other public agencies, other organizations, and members' of the public raised each of the claims presented in this petition prior to the close of the public. hearing on the approval of the Project. 19. PETITIONERS have complied with the requirements of Public Resources Code section 21167.5 by mailing written notice of the commencement of this action to Respondent C~ifornia High Speed Rail Authority before fIling this Petition and Complaint. A copy of that notice, with . ','''' .' . proof of service, is attached hereto as Exhibit A. 20. Pursuant to Public Resources Code Section 21167.7. PETITIONERS have provided a copy of this PetitiQn and Corpplaint to the Califorirla Attorney G~neral. A COpy of the 14 ' 15 16 17 18 19 20 21 22 23 24 25 26 27 . accompanying notice and proof of service are attached hereto as Exhibit B. 21. PETITIONERS have nG plain, speedy or adequate remedy in the (',)rdinary course oflaw. J Unless this Court grants the requested writ of mandate to require CHSRA to rescind'its approval of the Proj~ct and·certification of the FPEIlUS. CHSRA's actions in violation of CEQA will remain in effect. 22. IfCHSRA is not enjoined from moving forward to implement the Project and froni undertaking acts in furtherance thereof, PET~TIONBRS will suffer irreparable harm for which tJ:1ere is no adequate remedy at law in that CHSRA will move towards constructing a high speed . . tram system including the Pacheco Pass Alignment, with attendant significant environmental . . '. . '" '.' . impacts. without having fust coriducted adequate environmental review, which might have .' . . '. avoided or mitigated some or all of those impacts. PROJECT BACKGROUND 23. In 1993~ the qovemor of California issued Executive order W-48-93 calling for 28 . establishment of a task force to study the feasibility of implementing a statewide high-speed rail 6 PETITION FOR WRIT OF MANDATE AND COMPLAINT l- I system, Shortly thereafter, the Governor signed Senate Concurrent Resolution 6 authorizing 2 creation of a nine~member Intercity High Speed Rail Commission (hereinafter. "Commission") 3 to st.udy and develop a framework for implementing such a system over a 20-year time horizon, 4 24. In 1996. the Commission issued its fmal report. In that report. the Commission 5 summarized its study of a statewide high speed rail system and specifically of different potential 6 aJignments for portions of that syste~. The report identified the Altamont Pass alignment for the 7 route between the Bay Area and the Central Valley as the preferred alternative. concluding that, 8 "The Panache or Pacheco Passes would result in higher impacts than the Altamont Pass, 9 particularly impacts to wetlands and habitat for threatened and endangere~ species." 10 25. After its creation in 1996. the CHSRA prepared and, in or about the year 2000. adopted a II final High Speed Train System Business Plan, The CHSRA then moved forward toward the . 12 production and .certification of a Progranunatic EIRIEIS on the broad outlines of the statewide 13 High Speed Rail systein. ]4 26. In or about January 2004, th~ CHSRA released its DPEIRIS for the statewide high . . 15 speed rail system. That DPEIRIS evaluated only two alternative alignments for access to the San 16 Francisco Bay Area: the Pacheco .Pass Alignment and the Panache Pass Alignment. The J7 DPEIRIS rejected an Altamont Pass Alignment as not meeting the purpose and need of the 18 project due to the need for a new Bay Crossing and the claimed reduction in train frequencies. 19 27. PETITIONERS, pu1?lic agencies, other organizations, and individuals submitted 20 numerous commentS on the DPEIRIS objecting 'to its failure to give serious consideration of the. 21 Altamont Alignment option and pointing out the serious environmental problems inherent in the. 22 Pacheco Aligninent. 23 28. In or about December 2005, the CHSRA certified the FPEIRIS for· the' statewide high 24 speed rail system and approved the statewide project. In certifying the FPEIRIS for the statewid 25 high speed rail system· and approving the project, the CHSRA specifically detennined norto .. '_. 26 choose 1m alignment for access to the San Francisco Bay area from the Central Valley, putting 27 that decision offfor further study. 28 7 2 3 '4 5 6 7 , 8 9 PROJECT mSTORY 29. The CHSRA resolution approving the statewide high speed rail system specifically authorized CHSRA staff to prepare a separate progra~atic EIR to study the options for a high speed rail connection between the San Francisco Bay Area and the Central Valley portion of the , high speed rail system. It specifically mandated study of both the Pacheco Pass Alignment and the Altamont Pass Alignment alternatives. 30. The DPEIRJS for the Project was prepared concurrently and in coordination with a separate study undertaken by the, Metropolitan Transportation Commission ("MTC"), the Bay Area Rapid Transit District ("BART"), and the Caltrrun Joint Powers Authority to develop a Bay 10, . Area Regional Rail Plan. However, ,that effort did not involve any separate environmental 11 12 13 14 15 16 17 18 19 review component. , 31. On or about July 16, 2007, CHSRA released the DPEIRJS for the project. The document c~nsisted of nine subst~tive chapters, totaling almost 800 pages oft~xt,'phis munerous tables" diagrams,' and figures., In 'addition to the docwnenf itself, CHsRA 'also' rele~sed a series of ' ' technical studies in support ofthe DPEIRJS. The initial comment period was $et for sixty days. Given the voluminous amount of material to be reviewed, numerous agencies, organizations, and individuals requested an extens.on of the comment period. The comment peri,od was consequen~ly extended until October 26, 2007. 32. PETITIONERS are informed and believe, and on that basis allege the following: that 20 . . prior.to or during the time when the DPEIRJS for the Project was beingj)repared, CHSR.1\, either 21 . , ~irectly or through'its directors, staff, consultantsandlor contractors, le.arned that th~ Union '22 23 24 25 26 27 28 Pacific Railway (hereinafter, "UP") strongly objected to the lise of its right-of-way' by the Project . , or any other portion of the high speed nUl system being planned by CHSRA. ,In part, this was . . . . because UP was concerned about potentially severe public sa:fety impacts that could be ' associated with having its freight operations and the Project operating in the s~e right-of-way or even in adjoining rights-of-way. UP communicated this concern to CHSRA. ,CHSRA also', became aware that UP insisted that the Project, as proposed, would have severe adverse, impacts on UP's ability to effectiv~ly conduct its freight operations in the future. Nevertheless, the 8 PETITION FOR WRIT OF MANDATE AND COMPLAINT DPEIRIS failed to disclose UP's objections and concerns or any of the potential associated 2 adverse environmental impacts. 3 33. PETITIONERS, their members, public agencies, organizations, and individuals 4 submitted voluminous comments on the DPEIRIS for the Project. M~y of those comments 5 again raised questions about the fairness and adequacy of the DPEIRlS's analysis of the Pacheco 6 Pass vs. Altamont Pass alignment alternatives. In addition, comments pointed up potential 7 disruptive impacts of the Pacheco Pass alignment on areas throughout the San Francisco Bay 8 Area and disputed the DPEIRIS~s claim that its land use impacts would be minimaL Comments 9 also suggested other previously-unanalyzed options for the Project alignment. ]0 34. On or about Novemb~r 14,2007, CHSRA staff released a document entitled, "Summary 11 of Public Hearings and Comment Period.'" The eight-page document purported to summarize th , ,-. '. . 12 issues raised by comments submitted on the DPREIRlS on the Project. That same day, CHSRA I ., " ". .' '. 13 staff also r~leased ,a document: entitled; "S~ff Recommendations: Preferred Network Alterpative; 14 'HST Alignment and Station Locations." Even though the time period for public review and ]5 comment on the DPEIRIS had already closed and 'even though responses to ,comments on the '16 DPEIRJS had not yet been completed or provided to the CHSRA Board, the staff 17 recommendations designated the P~checo Alignment Alternative as the preferred a1ter~ative in 18 the DPEIRlS, with the proviso that at an unspe,cified future date, with unSpecified future funding, 19 a lo:wer sp~ed regional rail link between the Central Valley and the East Bay through the 20 Altamont Pass could be added. The Board purported to take no actio~ on ,the staff 21' recommendations. 22 35. On or about May 21, 2008, CHSRA released the FPEIRIS.for the Project, consisting of 23 'fu.ree volumes: Volume I -the FPEIRIS itself;, Volwne II -the.. technical app~ndices ,to the 24 FPEIRfS; and Vohime'III -coinments received on the DPEIRIS and responses to those . . .' . . 25 comments. 26 36. In or about June 2008, CHSRA released a,document entitled, "Addendum/Errata to Final 27 Program EIRJEIS for Bay Area to Cen~al Valley Portion of the California HST System" 28 (hereinafter, "Errata/Addendum''). The Errata/Addendum contained modifications to the 9 FPEIRIS ' s analyses of air quality and energy use. The Errata! Addendum was not circulated for 2 public comment. 3 ri. On or about July 8, 2008, CHSRA held a public hearing to receive comments on the 4 FPEIRIS and on the Project. PETITIONERS and others submitted oral and written comments 5 objecting to the certification of the FPEIRIS and the approval of the Project. 6 38. On or about July 9, 2008, after hearing ~taff-prepar~d responses to the comments . 7 re~eived at the public hearing, the CHSRA Board voted to certify the FPEIRISfor the Project 8 and to approve the Project. . 9 39. On or about July 9, 2008 CHSRA filed a Notice of Determination for its approval of the . 10 Project. 11 . CHARGING ALLEGATIONS 12 FIRsT CAUSE"'OF ACTION 13 .. ;Vioiation of CEQA and CEOA Guidelines ~ Certification of LegiUly Inadeg~ate Environmental 14 Impact Statement. . . .' .' . 15 16 17 40. PETITIONERS hereby reallege and incorporate by reference the preceding paragraphs 1 through 38 as though fully set forth herein. .41. The Project required discretionary approval by CHSRA and was therefore a project under 18 19 20 21 22 23 24 25 26 27 28 CEQA. 42. The Project did not qualify for any CEQA exemption and therefore required environmental review under CEQA. 43. CHSRA was the lead agency for environmental review of the PrQject under CEQA. ·44. CHSRA detennined that the Project had potential to cause significant adverse enviro~erit~ impacts, imd'theJ:'ef~r~ determin~d to prepare ~ prOWamt)l~tic EIR for the Project. 45. CHSRA had a duty under .cEQA to certify that the FPEIRIS f~r the Project satisfied ail . '. requirements under CEQA. CHSRA. violated this duty by ~ertifying the FPEIRIS for the Project ~h~re the' FPElRiS was deficient in the foliowing respects: 10 PETITION FOR WRIT OF MANDATE AND COMPLAINT I" I Count One: Inadequate Project Description 2 46. An EIR is required to include an adequate description of the Project being considered. 3 The description must be accurate and must contain sufficient detail to allow the reader of the EIR 4 to understand the "nature of the Project and its salient characteristics. The project description in 5 the FPEIRIS was inadequate for the following reasons: 6 • The Project description failed to ~dequately describe the location of the Project, 7 including relevant information on the location of the proposeq right.of-way and 8 station locationS. In partiClilar, the project description failed to indicate the degree of " 9 uncertainty as to where the Projec~ right-cif-way and stations would be located and 10 contained conflictiflg information about the location of tho Project right-of-way. In 11 addition, the project description failed to indicate the extent the project would require" 12 acquisition of private property thro:ugh eminent domain. 13 • " The Project description failed to include relevant inf~mation about es~entiru " 14" characteristics of the project, including speoifically operational characteristics such as 15 the projected ridership for the various alternative aiignments along with a dear ]6 explanation of the methodology used to calculate those ridership figures. 17 • The Project description failed to include an explanation of what portions of projected" 18 ridership would occur regardless of whether the Project was approved or regardless 0 19 the alignment alterpative chosen. 20 • The Project description failed to include a full tabulation, with explanations, of 21 Project costs, including costs for each alternative or sub-aItemative, methodologies 22 for calculatIng"those costs, and including the projected costs.for tunpels through 23 developed urban areas and costs for developingthe"ridership for each alternative" 24 (e.g., advertising costs, costs of incentives offered to employers, developers, etc.), as" 25 well as severance costs involved in taking portions o~ parcels by eminent domain. 26 • The Project description failed to include a tabulation of expected funding sources for 27 the Project. 28 11 • The Project Description, as presented in the DPEIRIS circulated for public review an 2 comment, failed to include infonnation on the environmentally superior alternative 3 and how it was chosen, thereby depriving the public of the opportunity to comment " 4 o~ the methodology used to identify that alternative.' \ , 5 • The project description failed to clearly explain the relationship of the project to the 6 . proposed regional rail servi¥e along the Altamont Alignment, inCluding specifically 7 the extent to which the two projects were and would be linked, both financially and 8 operationally. 9 Accordingly, the approval of the Project and the certification of the FPEIRJS mu~t be set 10 as,ide. , II Count Two: Failure'to Fully Disclose Diad Adequa~ely Analyzet~e Project's Significant' 12 Environmental Impacts. ,13 47. The FPEIRlS failed to fully disclose or adequately analyze, the significant gr.owth~ 14 inducing impacts, of the Pacheco Alignment in an,a around the ,areas south of San Jose, around ' 15 Gilroy, and both east and west of Pacheco Pass. These impacts, both direct and indirect, would 16 inolude: 17, • loss of valuable prime agricultural land; 18 • .increased auton;lOtive traffic; 19 • increased energy consumption; , , 20 • promotion of inefficient "sprawl" development; 21 • promotion of development in the absence of adequate supporting infrastructure; 22 • loss otvaluable wildlife habitat; , , 23 • destruction of wetlands and other valuable water resources; . ....' ",,' , 24 48. The FPEIRlS fails to fully disclose or adequately.analyze the Project's significant· 25 impacts associated with the use of UP and/or UP-shared right-of-way an,dlor the neCessity of 26 moving the Project away from the UP right-of-way, including the following: ' 27 • public health and safety impacts due to' the potential for derailments on the UP freight 28 line and subsequent collision of high speed trains with the derailed freight cars; 12 PETITION FOR WRIT OF MANDATE AND COMPLAINT • di,splacement of residents and businesses if CHSRA was forced to relocate the Project 2 right-of-way away from the UP right-of-way; 3 • destruction of wetlands, wildlife habitat, and/or valuable prime agricultural lands if 4 the CHSRA was forced to relocate the Project !ight-of-way away from the UP right- s of-way; 6 • 'Land use impacts through the' division of existing communities if the Project right-of- 7 way was moved away , from the UP or l!P-shared right-of-way so as to divide existing 8 communities; 9 49. ,The FPEIRIS fails to fully 4isclo~e or adequately analyze the Project's significant 10 impacts on jurisdictions it ~1l traverse, including specifically ciiies on the San Francisco 11 Peninsula bordering on the Caltrainright-of-way, including the following: 12 • noise~ air quality, and vibration impacts on portions of the jUrisdictions near the 13 Caltrain right-of-way from the construction and operation of the Project; 14 • land use impacts in dividing existing communities if <;HSRA is forced to move,the 15 Project away from the Caltram right-of-way in order to protect UP freight use of the 16 Caltrain right-of-waYt as well as land use impacts from further visually and physically' 17 dividing communities by the widened and possibly elevated structures along the high, speed rail right~bf-way; 18 19 20 • displacement of residents and businesses if CHSRA was forced to relocate the Project right-of-way away from the: Caltnun right-of-way; 21 • impacts throtigh the destruction of existing vegetation, including many mature trees' 22 along'the 'proposed Pacheco Pass aligfunent.' 23 • Visual inipacts from pl~cement ofJhe qigh speed rail right-of-way, including 24 specifically visual impacts from possible elevated structures and/or soundwalls. 25 SO. The FPEIRfS fails'to fully disclose or adequately analyze the Project's significant air 26 quality impacts; inclfiding specifically itS impact through production of greenhouse gases arid ' 27 contribution to global warining; 28 13 51. The FPEIRIS fails to fully disclose or adequately analyze the Project's significant 2 impacts on traffic and public transportation. 3 52. The FPEIRIS fails to fully disclose, or adequately an~lyze the Project's significant 4 impacts on agricultural lands, including both impacts through the taking of agricultural lands, 5 impacts from severance of agricultural land, and indirect agricultural impacts due t,o induced' 6 sprawl development 7 53. The FPEIRIS fails to fully disclose or adequately analyze the Project's significant 8 impacts on biological resources, including the direct and i~direct impacts on Wildlife habitat, 9 threatened, endangered, or otherwise protected species, wetlands areas, and other unique or 10 valuable biological resources. 11 ?4. The FPEIRIS fails to fully disclose ~r adequately analyze the Project's significant land' " J2 use impacts, including impacts due toincompatibjJity with existing or planned land uses" , ' , 13 inconsi~ten~y with zoning or general pian designations, and impacts on, Section 4(f) or 6(f) , ' J4 re~ources. 1~ 55. The FPEIRIS fails to fully disclose or adequately analyze the Project',S significant 16 cumulative impacts. Accordingly, the approval of the Project and the ~ertification of the 17 FPEIRIS must be set aside. 18 Count Three: The FPEIRIS Failed to Adequately Mitigate the Project~s Significant 19 Impac~s. , 20 56. Especially because the FPEIRlS failed to adequately assess and identify the Project's , , , 21 significant impacts, the FPEIRIS failed to adequately identify appropriate measures to mitigate, 22 the, Project's significant impacts. Even in thos~ ca~es where the FPEIRIS identified a signifi<?ant 23 impact and identified measures to mitigate that impact, the mitigation measures were Qften , . . . " . '. \., .., ' 24 inadequate and, in many cases so po~rly described as to make it impossible to determine whether 25 the measure was even fea$ible. For example, the FPEIRIS, as mitigation for potentially 26 significant Project land use impacts, calls fOl:' "Continued coordination with local agencies. 27 Explore opportunities for joint and mixed-use development at stations. Relocat.ionassistance 28 14 PETITION FOR WRlT OF MANDATE AND COMPLAINT during future project~level review. Overall mitigation strategies for affected land uses and in EJ 2 areas.~· (FPEIRlS, p. 9-8.) 3 57. Consequently, the FPEIRIS often improperly determined than the identified measures 4 were sufficient or potentially sufficient to' mitigate Project impacts to a level of insignificance 5 when the evidence in the record failed to support that determination. Accordingly. the approval 6 of the Project and the certification of the FPEIRIS must be set aside. 7 Count Four: The FPEIRlS Failed to Include an Adequate ~alysis of Project Alternatives. 8 58. Under CEQA. an EIR must include an adequate analysis of feasible project alternatives. 9 59. In addition to the statutorily-mandated no project alternative, the FPEIRIS included two 10 ' basic alternative alignment alternatives, Pacheco Pass and Altamont Pass. although each of these 11 alignment alternatives included numerQus sub-alternatives for various portions of the route. For 12 ,example,the Pacheco Pass Alternative included sub-alternatives traversing'the area l?a:sr of 13 Pacheco Pass either along a southerly ';He1¥Y Miller'Road" alignment ori northerly "GraSslands 14 Ecological Area North" 'alignment. Similarly, the Altamont Pass alignment included sub- '15 alternatives using either an elevated bridge near the existing Dumbarton Rail Bridge or a new 16 tunnel between Oakland and San Francisco to traverse San Francisco Bay between the East Bay 17 and San Francisco. 18 60. While the FPEIRIS purported to provide a fair. objeCti',:,e and complete comparison of 19 these two project altern.atives. the ahalysis Was inadequate. inaccurate. incomplete and biased, 20 thereby making a fair comparison of the two major alternatives impossible. This violated the 21 'basic purpose of'the analysis of alternatives under CEQA. 22 61. The,FPEIRfS's analysis of the Altamont Pass Alternatives inaccurately portrayed the 23 operational characteristics of those alternatives in a way that resulted in sjgnificantly 24 underestimating the potential ridership for those alternatives. thereby unfairly penalizing the 25 Altamont Alternatives compared to th~ Pacheco Alternatives. 26 , -62. The FPEIRIS improperly and unfairly discounted and found infeasible the potential for 27 the Altamont Alternative to rebuild the Dumbarton Rail Bridge, in a way so that it could be used 28 by both Caltrain Dumbarton Rail Project trains and High Speed Rail trains. ,15 63. The FPEIRIS improperly and unfairly overemphasized the aquatic impacts of building a 2 new rail bridge at the site of the existing Dumbarton Rail Bridge and discounted the likelihood 0 . 3 being able to obtain environmental clearance for such a bridge as part of an Altamont Pass 4 alignment alternative; while, at the same time, underestimating the aquatic, wetlands, and 5 wildlife impacts of the Pacheco Pass alignment alternative's crossing of the Grasslands 6 Ecological Area and discounting the difficuity of obtruning environmental clearance for such a 7 crossing. 8 .. 64. The FPEIRlS improperly and unfairly overemphasized the impacts of running the high 9 speed niil alignment through the cities of Pleasanton and Fremont as part of an Altamont Pass 10 alignment alternative, while, at the same time, underemphasizing the impacts of running the high J 1 speed niH alignment through the developed urban ju-:isdic~io~ al~ng the San Francisco . . . 12 Periinsula, including specifically Atherton, Menlo Park, Palo Alto, Mountain View. Sunnyvale,. . . . . . .' . . 13 and Santa Clara, as well as portions orSan Jo.se. In additio~,by not discl~sing the abse~ce of . , -' . . . . 14 undeveloped land outside the UP·.corridor south of San Jose's DiTidOI),Station;tlltiFPEIRIS 15 underemphasized the impacts of running the high speed rail alignment through portions of San 16 Jose south of that station. 17 . 65. Both ATHERTON and MENLO PARK., in their comments on the DPEIRfS, proposed ]8 study of an additional alignment alternative along the San Francisco Peninsula, running within or 19 along the Caltrans right-of way for Highway 280. The FPEIRlSIailed to adequately discuss this 20 8ltemative alignment. 2] 69. The FPEIRIS's :unfair, incomplete. and biased aI1!llysis of project alternatives violated , '. . 22 CEQA; s requirement that the discussion .of project alternatives allow the deci~ion makers and the 23 . public the information needed ,to make an informed decision. Accordingly,. the approval of the -. ." " .. . . 24 . Project and the certification of the FPEIRIS must be set aside .. 25 Count Five: Fan~re to Adequately Respond to Comments on the DPEIRIS 26 67. An EIR must include adequate written responses to all ,comments, both oral tmd writte1'l, 27 received by the lead agency during the public cornrrlent period. The F~EIRIS was i~adequate 28 because the responses to many of the comments received by the lead agency during the public, 16 PETITION FOR WRIT OF MANDATE AND COMPLAINT comment period were inadequate. In many cases, the responses were perfunctory or conclusory, 2 and in other cases the responses were not supported by substantial evidence. In the case of 3 MENLO PARK, the.~mment letter was not even included in the FPEIRJS and was not 4 responded to at all. Accordingly, the approval of the Project and the certification of the FPEIRJS 5 must be set aside. 6 . ·7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . SECOND CAUSE OF ACTION Violation of CEOA and CEOA Guidelines':' Failure· to recirculate DPEIRlS in response to new information and/or changed· circumstances . . 68. PETITIONERS hereby reallege and incorporate by reference the allegations in the preceding paragraphs 1 through 66 inclusive. as though fully set forth herein. . " . . 69. CEQA requires that a draft BIR be recirculated for an additional round of public 'comment if changes to the document after the close of the previous comment period result in the .' , .' " , -', . '. , addition of significant new information. In addition, recirculation is required if new •• 'w"·· circumstances have arisen after the close of the previous public comment periqd that would require substantial revision to the BIR. CHSRA violate.d its duty under CEQA by refusing to recirculate the DPEIRJS for public comment after changes to the BIR resulting in addition of significant new information oli air quality and energy use impacts, and specifically the Project'.s impacts on global warming. 70. CHSRi\ violated its duty under.CEQA by refusing to recirculate the DPEIRJS for public comment after it was publicly revealed that UP had raised strong objections to CHSRA's use of ,'. .' .. . , '.. "., its right-of-way or adjoining property for the Project right-of-way and raised serious concerns .' . '. " '. . . about ~ignificant public safety impacts not previously. identified in the DPEIRIS. Accordingly, the approval of the Project and the certification of the FP~IRIS must be set aside. .. ." . THIRD CAUSE OF ACTION Violation of CEQA and CEQA Guidelines -Failure of CEQA Findings to be Supported by Substantial Evidence '.. 17 71. PETITIONERS hereby reallege and incorporate.by reference the preceding paragraphs 1. 2 through 69 inclusive as though fully set forth herein. 3 72. CEQA requires that an agency approvmg a Project for which an EIR was prepared and 4 significant impacts were identified adopt findings explaining and justifYing its actions. (public 5 Resources Code §21081.) Those findings must be supported by substantial evidence in the 6 record. CHSRA violated this duty to prepare and approve adequate CEQA findings in support 0 7 its decision to approve the Project in that the findings were not supported by substantial 8 evidence. Accordingly, the approval o~the Project niu.st be set aside. 9 FOURTH CAUSE OF ACTION 10 . DECLARATORY RELIEF -Code of Civil Procedure § l060 11 73. PETITIONERS hereby realleg~ arid incorPorate by reference the preceding paragraphs'l 12 through 71 as though fully set forth herein. . . . 13 74. An actual controversy and dispute exists between PETITIONERS and CHSRA regarding .. 14 . .... ., the Project approval's compliance with CEQA and the CEQA Guidelines. PETITIONERS 15 allege that the Project approval Jailed to comply with CEQA and/or the CEQA Guidelines, while 16 PETITIONERS are informed ~d believe, and on that basis allege, that CHSRA believes that the 17 Project approval did fully comply with both CEQA and the CEQA Guidelines. ]8 75. PETITIONERS seek ajudicial declaration that the Project approval f~ed to comply'with 19 the requirements of CEQA and/or the CEQA Guidelines. 20 76. An actual controversy and dispute exists between PETITIONERS and CHSRA regarding 21 . . the FPEIRlS's compliance with CEQA and the CEQA Guidelines. PETITIONER:S allege .that . . . , ~ 22 the FPEIRIS fail~d to comply with CEQA and/or the CEQA Guidelines, while PETITIONERS . 23 24 25 26 27 28 are informed and believe, and on that basis allege, that CHSRA believes that the FPEIRIS did . . . ," fully comply with both CEQA and the CEQA Guidelines 77. PETITIONERS seek a judicial declaration that FPEIRlS failed to comply with CEQA and/or the CEQA Guidelines. ?8. An actual controversy and dispute exists between PETITIONERS and CHSRA regarding the adequacy of the CEQA findings made by CHSRA in support of the Project approval. 18 PETITION FOR WRIT OF MANDATE AND COMPLAINT .l PETITIONERS allege that said findings were invalid because they were not supported by 2 substantial evidence in the record. while PETITIONERS are informed and believe, and on that 3 basis allege, that CHSRA believes that said findings were fully adequate and yalid. 4 79. PETITIONERS seek a judicial declaration that the CEQA findings made by CHSRA in 5 support of its approval of the Project were ~va1id because they were not supported by substantial 6 evidence in the record. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PRAYER FOR RELIEF WHEREFORE, PETITIONERS pray for relief as follows: 1. For this Court's peremptory writ of mandate ordering CHSRA to: (a) vacate and set aside its detenninations approving the Project, including its determinati~n to choose the.Pacheco Pass alignment for the Project; (b) vacate and set aside its certification of the FPEIRIS for the Project; remanding the Project and its environmental review under CEQA to CHSRA for reconsideration in '. . . . . accordance with this Court's determination and ,final judgment.' . , 2. F or ~his Court's temporary restraining order and preliminary injunction restraining CHSRA, its agents, servants and employees, and all others acting in concert with it or in its behalf, from taking any action t9 move forward on implementing the project pending a final decision on the merits by this Court. 3. For this Court's pennani:mt injunction restraining CHSRA, its agents, servants and employees, and all others acting in concert with it or in its behalf, from undertaking any activity or activities that could result in any change or alteration in the physicaJ environment until CHSRA has fully complied with this Court's writ of mandate and judgment and taken all required action~ that maybe necessary to bring the'FEIR and all planning pe~t approvals, into . compliance with CEQA, Code of Civil Procedure section f094.5, and all otherrequirements oflaw. 4. For this Court's declarations that: . . . a. the Project approval violated CEQA and/or the CEQA Guidelines as set forth in this Petition and Complaint; 19 \ b. the certified FPEIRIS for the Project failed to meet the requirements of CEQA 2 and/or the CEQA Guidelines; and 3' c. the CEQA fmdings for the Project approval were not supported by substantial 4 evidence fll the record. 5 5. For its costs of suit. 6 6. For an award of attorneys' fees under C.C.P. §1021.5 or other applicable basis. , " 7 7. For such other equitable and/or legal relief as the Court considers just and pro:per. , 8 'DATED August 7,2008 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Law Offices of Stuart M. Flashman Law Offices of Jeff Hoffman Attorneys for Petitioners and Plaintiffs ~f~.JfI.~ By: . : . Stuart M. Flashman 20 PETITION FOR WRIT OF MANDATE AND COMPLAINT . I 2 3 4 6 7 8 '," VERIFICATION I. David Schonbrunn. em the President of the Transportation SoJutions Defense and Education Fund, whi~h is a petitioner and plaintiff in the above, petition and complaint, and' I . make this verification on its behalf and with its authorization. I have read the foregoing Petition and Complaint ai:td am familiar with the maUe{S alleged therein. AU facts alleged in this complaint are true of my own personal knowledge exot..-pt as to facts that are alleged on information and be1ief, and as to them I am infotmed and believe they are~. I declare Wlder ' " , 9 penalty of petjury under the la.ws of the State of California tQat th foregoing is t[Ue and correct 10 and 'that this Verification was executed on Aug~ Z, 200~ at ' allfomia. u. 12 , 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --,~--------- 21 PEnllON FOR WRIt OF MANDATE AND COMPLAJNT · , '. .' .. , , , Ex'hibit A Law Offices of Stuart M. Flashman 5626 Ocean View Drive , Oakland; CA 94618-1533 (5]0) 652-5373 (voice and FAx) e·maiJ: stu@stuflash.com Mr. Mehdi Mcrshed,Executive Directcr Califcrnia High Speed Rail Authcrity 925 L Street, Suite 1425 Sacramento., CA 95814 August 7, 2008 RE: . Notice cf In:tent to. .Ini tiate Li tigaticn (Bay Area to. . Central Valley High Speed Train Pro.ject). Dear Mr. Mo.rshed, Please take nctice that the To.wn of Atherto.n, the Planning .and'Conservaticn League, the City cf Menlo. Park l the Transpcrtation Sclutions Defense and Education Fund, the California Rail Fo.undaticn; and the BayRail.Alliance ~ntehd·to. fil~ suit against the California High Speed Rail Authcrity , challenging its apprcvals for the above-referenced,prcject and its 'associated environmental review. The ·lawsuit will ~llege violaticns of the Califcrnia Enviro.nmental Quality Act 'in' connection with those approvals. Mcst sincerely, Stuart M. Flashman Law Offices of Stuart M. Flashman Jeff l'loffman Law Office qf Jeff D. Hoffman Attorneys for the Town of Atherton, the Planning and Ccnservation League, the City of Menlo. Park, the Transportation Sclutions Defense and Education FundI the California Rail Foundation, and the BayRail Alliance ~f~ By: __________________ __ Stuart M. Flashman PROOF OF SERVICE BY MAIL I am a citizen of the United States and a resident of Alameda County. I am over the age of eighteen years and not a party to the within above titled action. My business address is 5626 Ocean View Drive, Oakland, CA 94618~1533. On August 8,2008, I served' the within NOTICE OF INTENT TO ~ITIATE. LITIGATION on the party listed below by placing a true copy thereof enclosed in a sealed envelope with first class postage thereon fully prepaid, in a United States Postal Service mailbox at Oakland, California, addressed as follows: . . Mr. Mehdi Morshed, Executive Director . Califoinia High Speed Rail Authority 925 L Street, Suite 1425 . Sacramento .. CA 95814· I. stUart M.· FlastUnan, hereby declare Under penalty of perjury Wlder the laws of the State of California that the foregoing is.true and correct. '. " . Executed at Oakland, California on August 8, 2008 .. ~~.~ ~F1ashman·. '. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTACHMENT C FILED SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO TOWN OF ATHERTON, a Municipal corporation, PLANNING AND CONSERVATION LEAGUE, a California nonprofit corporation, CITY OF MENLO PARK, a Municipal corporation, TRANSPORTATION SOLUTIONS DEFENSE AND EDUCATION FUND, a California nonprofit corporat10n, CALIFORNIA RAIL FOUNDATION, a California nonprofit corporation, and BAYRAIL ALLIANCE, a California nonprofit corporation, and other similarly situated entities, Petitioners and Plaintiffs, v. CALIFORNIA HIGH SPEED RAIL AUTHORITY, a public entity, and DOES 1-20, inclusive, Respondents and Defendants. ----------------------------------------, Case No. 34-2008-80000022 RULrNG ON SUBMITTED MATTER This matter came on for hearing on May 29, 2009. The matter was argued and submitted. The Court took the matter under submission. The Court, having considered the pape~s, the administrative record wh1ch was admitted 1nto evidence z4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 at the hearing, and the arguments of the parties, makes its ruling as follows. Petitioners challenge the decision of respondent and defendant California High Speed Rail Authority ("CHSRA" or "the Authority") to approve the Say Area to Central Valley High Speed Train Project ("the Project"), including specifically choosing an alignment for the Project. Respondent chose an alignment running through Pacheco Pass rather than the other major alternative alignment WhlCh ran through Al~amont Pass. Petitioners contend that respondent has not provided legally adequate review under the California Environmental Quality Act, Public Resources Code section 21000 et seq. ("CEQA"). Petitioners contend that respondent's actions are illegal as they violate CEQA and the California Code of Regulations, Title 14, section 15000 et seq. C\CEQA ) Guidelines"). Petitioners contend that the Final Program Environmental Impact Report ("FPEIR") for the Project was 19 inadequate 1n several respects. They contend that it failed 20 to include an adequate description of the project and 21 feasible alte~natives. They contend it failed to adequately 22 23 24 25 26 27 28 identify and mitigate the Project's significant impacts, and that its alternatives analysis was inadequate and improperly predisposed towards the Pacheco alignment .. Petitioners also contend that respondent Authority improperly refused to recirculate the Draft Program Environmental Impact 'Report ("DPEIR h ) after Union Pacific Railroad announced it was unwilling to allow use of its right-of-way, and that 2 1 respondent Authority failed to consider or respond to Menlo 2 Park's comment letter on the DPEIR. 3 4 5 6 7 8 9 10 11 12 13 14 16 16 17 18 19 20 I . STANDARD OF REVIEW Petitioners contend that this challenge is governed by Public Resources Code section 21168. Petitioners contend that under that standard of review, "the courts' inquiry shall extend only to whether there was a prejudicial abuse of discretion. Such an abuse is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (Petitioners' opening brief, 8:24-9:2, citing Ebbets Pass Forest Watch v. California Dept. of Forestry & F~re Protection (2008) 43 Cal.4th 936, 944.) Respondent contends that its action was quasi legislative and that review is governed by Public Resources Code section 21168.5, which limits the Court's inquiry to whether there was a prejudicial abuse of discretion. Respondent states that under this standard, a prejudicial abus~ of discretion is established if the agency has not proceeded in a manner required by law or if the decision is 21 not supported by substantial evidence. Respondent further 22 states that a prejudicial abuse of discretion is established 23 if the agency has not proceeded in a manner required by law 24 or if the decision is not supported by substantial 26 26 27 28 evidence. (Respondent's brief in Opposition to Petition, \ 6:25-7:3, citing Citizens of Goleta valley v. Board of Superv~sors (1990) 52 Cal.3d 553, 564 [Goleta II].) The Court concludes that respondent's action was quasi legislatlve and that review is governed by Public Resources . 3 1 Code section 21168.5. However, the two code sections embody 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 essentially the same standard of review, i.e.,. whether substantial evidence supports the agency's determination. (Laurel Heights Improvement Assn. v. Regents of th~ Univers~ty of California ("Laurel Heights II") (1993) 6 Cal.4th 112, 1133, fn. 17; Laurel Heights Improvement Assn. v. Regents of the Uni vers~ ty of California ("Laurel Heights I") (1988) 47 Ca1.3d 376, 392, fn. 5.) Thus petitioner's reliance on section 21168 in its brlef does not affect the outcome of this case. An EIR is presumed adequate, and the plaintiff in a CEQA case has the burden of proving otherwise. (Al Larson Boat Shop v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 749.) II. ADEQUACY OF THE FINAL PROGRAM ENVIRONMENTAL IMPACT REPORT FOR THE PROJECT A. WHETHER THE FPEIR FAILED TO INCLUDE AN ADEQUATE 17 DESCRIPTION OF THE PROJECT AND FEASIBLE ALTERNATIVES 18 1. One of petitioners' principal contentions is 19 that the project description in the FPEIR failed to provide 20 sufficient detail on the Pacheco alignment to determine the 21 project's impact~ in displacing residents and businesses. 22 The FPEIR and the Authority's findings assume that most, if 23 not all, of the proposed high-speed rail line in the area 24 between San Jose and Gilroy would be built within existing 25 right-of-way, "the existing Caltrain corridor." (AR 26 27 28 A000031i see also B004187.) However, Union Paciflc Railroad had informed the Authority just prlor to the publication of the FPEIR that it would not allow the Author~ty to use any of its right-of-way for the Project. (AR E000027.) And 4 1 after the FPEIR was released, but before the Authority 2 certified the FPEIR and made the related findings and 3 decisions, Union Pacific submitted a longer letter 4 reiterating its unwillingness to share its tracks with High S Speed Rail vehicles. (AR E000003-E0000004.) 6 7 8 9 ,10 11 12 13 14 15 16 However, the FPEIR appears to show that the ~ortion of the chosen Pacheco alignment between San Jose and Gilroy follows the Union Pacific right-of-way (AR B003944, B003955, B003961, B00510S-S10~, B006293.) In many places it shares the right-of-way with the Onion Pacific line (e.g., AR B005292, B005298, B005300) and is sandwiched between the Onion Pacific right-of-way and Monterey Road/Highway (AR B005300, G001425-G001437). If Union Pacific will not allow the Authority to use its right-of-way, it appears it will be necessary for the Author1ty to obtain additional right-of way outside of this area, requiring the taking of property \ 'and displacement of residents and businesses. However, none 17 of this was addressed in the FPEIR. 18 Respondent argues that a programmatic EIR does not need 19 to contain a high degree of detail, and that deta1led 20 information can be deferred to a later site-specific project 21 EIR. (CEQA Guidelines, sections 15146, 15152; In re Bay 22 Delta Programmatic Env~ronmental.Impact Report Cases (2008) 23 43 Cal. 4th 1143, 1169-1172.) Respondent contends that the 24 Project description in the FPEIR contains an adequate level 25 of detail for a programmatic EIR. It argues that this EIR 26 27 28 was intended to support the Authority in making the fundamental choice of a preferred alignment and station locatibns, but not select a precise footprint for high speed train facilities. More 1mportantly, respondent argues, the 5 1 FPEIR does not assume use of the Union Pacific right-of-way 2 between San Jose and Gilroy, but rather that it depicts the 3 HST tracks adJacent to Union Pacific's right-of-way; see, 4 e.g., Figure PP-6 at B005292. Respondent contends that this 5 6 7 8 9 10 11 12 13 14 15 16 17 18 figure also shows there is room for the HST tracks between the Union Pacific right-of-way and Monterey Highway (B005292) • Petitioners contend that Figure PP-6 (AR B005292) identifies ~Existing ROW" for ~Monterey Road" but does not explicitly identify the existing right-of-way for the UP tracks. Petitioners contend that Figures PP-12 ~AR B005296) and PP-14 (AR B005298), by contrast, clearly show the HST right-of-way as lying within that existing right-of-way. Several maps show little room between the exist~ng UP tracks and the Monterey Highway (e.g. AR G001432-G001435.) Respondent, in oral arguments, argued a different interpretation of Figure PP-14. The Court concludes that the description of the alignment of the HSR tracks between San Jose and Gilroy was 19 inadequate even for a programmatic EIR. The lack of 20 21 22 23 24 25 26 27 28 specificity in turn results in an inadequate discussion of the impacts of the Pacheco alignment alternative on surrounding businesses and residences which may be displaced, construction impacts on the Monterey Highway, and impacts on Un10n Pacific's use of its r1ght-of-way and spurs and consequently its freight operations. 2. Petitioners contend that the project description failed to provide an adequate explanation or delineation of the project's costs. They contend that the cost estimates in the FPEIR were inaccurate and skewed to favor the Pacheco 6 1 Pass alignment alternative by significantly understating the 2 acquisition costs for permanent right-of-way and temporary 3 construction-period right-of-way. They also contend that 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 the cost analyses for Altamont Pass alignment alternatives considered only the cost of a new high or low bridge but not the option of "piggybacking" on the existing Dumbarton rail bridge. The authorlties cited by petitioners do not require project cost information to be in an ErR; case authority does, however, hold that cost information is required to support a lead agency's CEQA findings when it rejects alternatives as economically infeasible. (Uphold Our Heritage v. Town of Woods~de (2007) 147 Cal.App.4th 587; Citizens of Goleta Valley v. Board of Superv~sors ("Goleta I") (1988) 197 Cal.App.3d 1167.) The Authority did not. reject all of the Altamont alternatives as economically infeasible. Furthermore, the Court finds that the FPEIR's cost information is supported by substantial evidence. The evidence includes Chapter 4 (B004624-647) which in turn refers to Appendices 4Aand B (B005971-6086, B006087-6180); and Appendix D (B004637; B004646; B006243). 3. Petitioners contend that the FPEIR failed to accurately and impartially describe the operating 23 characteristics of the project alternatives. They contend 24 25 26 27 28 that the FPEIR failed to accurately descrlbe the frequency of service for the Altamont and Pacheco alternatives in that it did not consider "train-splitting." The Court finds that the EIR provides an adequate description of HSR operations, supported by substantial evidence. The rldership forecasts were developed by experts 7 1 in the field of transportation modeling and were subject to 2 three independent peer review panels. (See C001886-88, 3 C001879-964, C001954-60, E004118-148i E004149-187; E004188- 4 97.) Substantial evidence supports respondent's approach of 5 not using train-splitting on main trunk service. Evidence 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 in the record, including evidence submitted by petitioners, shows that train-splitting and coupling is operationally disruptive, and that while some HST systems worldwide use train-splitting and coupling, the use is very limited. (See 8004716, 8006694, 8008032, B008035-36, 8008037.) Petitioners also contend that the FPEIR failed to adequately and fai~ly describe the ridership of the Altamont and Pacheco alternatives. They contend the Pacheco alignment would not draw sign~f~cant additional recreat~onal ridership because the limited number of stops on the HSR would make it less attractive than the already-existing Caltrain "baby bullet" route, and any additi.onal ridership would be at the expense of Caltrain ridership rather than taking cars off the road. The Court f~nds that the ridership modeling and forecasts performed by the Author~ty and the MTC are substantial evidence to support the FPEIR's description of the Pacheco alternative as having higher "recreational and 23 other" ridership than Altamont pass. The ridership analysis 24 25 26 27 28 concluded that it taps into a very wide market in Santa Clara County (B006696) and also creates a sizeable HST market to and from the Monterey Bay area, a market virtually non-existent for the Altamont Pass alternative (B006695). . The ridership analysis also suggests that some ind~viduals will pay a premium to ride the HST rather than Caltrain in 8 1 this corridor based on the serv~ce being faster and more 2 reliable. (B006696.) 3 B. WHETHER THE FPEIR AND THE AUTHORITY'S FINDINGS 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 FAILED TO ADEQUATELY IDENTIFY AND MITIGATE THE PROJECT'S SIGNIFICANT IMPACTS Petitioners contend the Authority understated the project's potentially significant impacts and overstated the degree to which those impacts would be adequately mitigated. Petitioners' primary contentions regarding impacts concern biological impacts, growth-inducing impacts, and local impacts along the-San Francisco Peninsula (noise, vibration, visual, taking of property and severance impacts, and impacts on mature and heritage trees). ! 1. Exhaustion of administrative remedies: Respondent contends that petitioners failed to exhaust administrative remedies as to any defect 1n the respondent's CEQA findings on impacts and mitigation, and that therefore the exhaustion of administrative remedies doctrine codified in Public Resources Code section 21177 bars petitioners' claim that respondent's CEQA findings on impacts and 20 mitigation are not supported by substantial evidence. The 21 authorities cited by respondent, including Mira Mar Mobile 22 Community v. Clty of Oceanside (2004) 119 Cal.App.4th 447, 23 do not support respondent's contention that it was necessary 24 to spec1fically object to proposed findings. The Court 26 26 27 28 concl~des that the criticisms, comments and objections made to the EIR were sufficient to exhaust administrative remedies as to the issues raised in this case. 2. Biological impacts: Petitioners contend that the analysIs and mitigation of the impacts to the Grasslands 9 1 Ecological Area ("GEA") along the Pacheco alignment and to 2 the Don Edwards National Wildlife Refuge {"Refuge") along 3 the Altamont alignment were not adequate, were neither equal , 4 nor impartial, and were lacking in detail. Petitioners also 8 9 10 11 12 13 14 15 16 17 18 contend that certain factors are conside~ed for the GEA but not for the Refuge, and that respondent did not adequately consider comments that replacing an existing bridge embankment with an elevated structure on piles would actually enhance conditions in the Refuge. The Court finds that substantial evidence supports respondent's treatment of biological impacts to the GEA and the Refuge. The' impacts analysis and mitigation 'section of the EIR (see generally AR B004462-4538), read together with the responses to comments (see 8006584 et seq.; G000807- 00814 [Summary of Key Issues on the DPEIR]) constitutes an adequate and impartial analysis of the biological impacts on the two areas. The same methodology was used throughout the area. The level of detail was adequate for a programmatic EIR. The FPEIR's identification of a more detailed 19 mitigation strategy for the GEA (AR 8004537) but not for the 20 Refuge is not unreasonable because the lands within the 21 Refuge boundary are already protected. The record does not 22 23 24 '25 26 27 28 support petitioners' contention that the inclusion of a more detailed mitigation strategy for the GEA and not the Refuge was the cause of concerns expressed by the U.S. Fish and wildlife Service (8006366) and the U.S Environmental Protection Agency (8006358) about use of areas within the refuge. 3. Growth-inducing impacts: Petitioners contend that the analysis of growth-inducing impacts was not 10 1 adequate. They contend that there was not a sufficient 2 analysis of the impacts in three rural counties-San Benito, 3 Santa Cruz, and Monterey Counties. Petitioners contend that 4 the HSR will extend the area in which existing employees can 6 live and commute to a job in a distant urban center, and 6 that such growth is not analyzed in the FPEIR. Instead, 7 8 9 10 11 12 13 14 16 16 17 18 there was analysis as to eleven other counties and San Benito, Santa Cruz, and Monterey Counties were merely included in ftthe rest of California." The Court f1nds that the FPEIR contains an analysis of growth-inducing impacts which is sufficient to satisfy CEQA. (Pub. Resources Code, sec. 21100, subd. (b) (5); CEQA Guidelines, sec. 15126(d), 15126.2(d).) Nothing in the GU1delines or in the cases requires more than a general analysis of projected growth. (Napa C~t~zens for Honest Government v.Napa County Bd. of Superv~sors (2001) 91 Cal.App.4th 342, 369.) Respondent relied on established modeling programs, the Transportation and Economic Development Im~act System (TREDIS) and the California 19 Urbanizat10n and Biodiversity Analysis (CURBA). Stations . 20 will be located in already-urbanized areas and thus the bulk 21 of .the growth increase will occur in already urbanized 22 areas. Petitioners' claim that the HSR will result in 23 greater development in the three more distant rural counties 24 is based on speculat10n, not matters as to which they have 26 technical expertise or which are based on relevant personal 26 27 28 observations. (See Bowman v. C~ty of Berkeley (2004) 122 Cal.App.4th 572, 583.) Respondent's responses to comments explained that the system would not result in a significant increase 1n commute accessibility to the Bay Area for a 11 1, number of reasons, including the limited number of stations, 2 the localized accessibility benefits provided by these 3 limited stations, the lack, of local transit options in 4 outlying areas, the higher cost of HST use for shorter trips 5 compared to auto use, and time considerations. (B006647-48; 6 B006712-13.) The Court finds the analysis to be 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sufficient. 4. Local impacts along the San Francisco Peninsula Petitioners contend that the Project will result in significant noise, vibration, and visual impacts; that it will result in significant land use impacts, including specificalJy taking of property and severance impacts; and that it will impact mature and her1tage trees along the right-of-way: a. Noise, Vibration, and Visual Impacts Petitioners contend that section 3.4 of the FPEIR, addressing the proJect's noise and vibrat10nal impacts, failed to identify specific quantifiable standards or criteria used to determine whether the impacts would be significant, and that it identified qualitative criteria but failed to provide evidence by which the public could determine whether these criteria had been met. FurtQer, respondent found that vibrational impacts would be reduced to a level of insignificance (AR000024), but petit10ners contend there is no evidence in the record to support this finding. 12 1 As for noise and vibration impacts, petitioners conten'd 2 that the FPEIR does not provide appropriately detailed 3 information to show that noise impacts will be reduced below 4 a level of significance. The FPEIR also identifies the need 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 for extensive soundwalls of up to 16 feet in height, but petitioner contends respondent does not address the potential visual impact of these barriers and improperly puts off consideration of such impacts to the project level environmental review. The Court finds'that the' FPEIR contains an adequate level of detail regarding noise for a program EIR. The analysis used Federal Railroad Administration and Federal Transit Administration criteria and tools to assess noise. (B004100-4105.) The FRA manual contemplates that the evaluation will first look at general questions. (C008070.) It concluded that grade separations at existing crossings would result in noise benefits, and listed mitigation strategies, including design practices, to reduce impacts. (B004120-4137.) The FPEIR also consl.dered all HST alternatives to result in significant noise and vibration impacts for 21 purposes of the programmatic analysis. (B004129.) It noted 22 23 24 25 26 27 28 that more detailed mitigation strategies for noise and vibration impacts would be developed in the next stage of environmental ,analysis. (B004129-30. ) Response to comments noted that project-level environmental review will consider design and profile variations ,to reduce impacts, as well as design options for noise barriers. (8006480, B006538-40.) The FRA manual identifies means of mitigating vibrational 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 impacts I (C008147; C008176-8180) and noise impacts (C008085, C008117-8122) . However, with regard to vibration impacts, the FPEIR I states: "Although mitigation measures will reduce vibration impact levels, at the programmatic level ~t ~s uncertain whether the reduced vibration levels will be below a signif1.cant impact. The type of vibration mitigation and expected effectiveness to reduce the vibration impacts of the HST Alignment Alternatives to a less-than-significant level will be determined as part of the second-tier project-level environmental analyses," (B004131 [emphasis added].) Nevertheless, the Authority, in its CEQA Findings of Fact, found that, as to the impact of vibrations, specified mitigation strategies "will reduce this impact to a less than significant level." (A000025 [emphasis added].) The Court finds that in light of this contradiction between the FPEIR and the CEQA F1.ndings, the Authority's finding that the mitigation strategies will reduce the vibration impact to a less-than-significant level is not supported by substantial evidence. Visual impacts: The FPEIR recognizes that sound barriers may be necessary mitigation measures along some portions of the HST route through the Peninsula. Petitioners contend that the visual impacts of these· barriers should have been analyzed in more detail. However, 25 the extent to wh1.ch n01.se barriers would be used could not 26 be known until the next stage of env1.ronmental analYSis, 27 when engineering and design considerations will be applied 28 on a site-specific basis. (B004l29-30.) Sound barriers are 14 1 discussed in FPEIR section 3.9, Esthetics and Visual 2 Resources, along with mitigation strategies. (B004305- 3 4307.) Visual and esthetic impacts were considered 4 significant and unavoidable. (B004307.) The FPEIR 5 identified subsequent analysis which should be performed. 6 (Id.) Respondent found that as part of the site-specific 7 8 9 10 11 12 13 14 15 16 17 18 design, many of the impacts on aesthetics and visual resources can be avoided or substantially mitigated, but that it did not have sufflcient evidence to make that determination on a program-wide basis. Therefore,' for purposes of this programmatic EIR, esthetic and visual impact was considered significant and unavoidable. (A000041.) Respondent adopted a Statement of Overriding Considerations. (AOOOI04-109. ) The Court finds that petitioners have failed to establish that respondent failed to adequately analyze the visual impacts of the Project or that it otherwise abused its discretion. b. Land Use Impacts 19 Petitioners contend that the Project will result in 20 significant land use impacts, including taking of property 21 and severance impacts. Atherton contended in its comment 22 letter that the proposed four-track alignment would result 23 in the need to take additional property beyond the existing 24 right-of-way. (B006530.) However, the response to this 25 26 27 28 comment (B006537-40) and the CEQA findings (A000029-33) indicated that the HST tracks were expected to fit withln the Caltrain right-of-way. As discussed elsewhere in this Court's ruling, Union Pacific has stated it is unwilling to allow its right-of-way 15 1 to be used for the project. The need for the taking 9f 2 additional property is a related issue that will be required 3 to be analyzed in connection with further analysis of the 4 impact of Union Pacific's denial of use of its right-of- 5 way. 6 7 8 9 10 11 12 13 14 15 16 17 18 c. Mature and Heritage Trees Petitioners contend that the Project will impact mature and heritage trees along the right-of-way. But the FPEIR's response to Atherton's comments indicates, 1n part, that a more detailed review of the impacts on mature and heritage trees would be performed at a project level environmental review (B06538) and that ~he HST is not expected to require the removal of trees along the right-of-way in Atherton (B006538) • The Court finds that respondent did not need to conduct a more detailed review of the impacts on trees at this level and properly deferred such analysis to project-level environmental review. C. WHETHER THE FPEIR'S ALTERNATIVES ANALYSIS WAS· 19 INADEQUATE AND IMPROPERLY PREDISPOSED TOWARDS THE PACHECO 20 ALIGNMENT 21 Petitioners contend that the Authority's findings 22 improperly determined that all Altamont alternatives were 23 infeasible. Petitioners contend that it improperly 24 25 26 27 28 determined that there were cost and regulatory obstacles to a Dumbarton Bay crossing; that the decision to eliminate several Altamont choices because of lower ridership and frequency of service was not supported by substantial evidence; and that construction difficulties for the Altamont alternatives shou1d not have been the basis for 16 1 eliminating those alternatives. Petitioners contend 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 solutions and answers existed to meet each of the issues. Petitioners further contend that the Authority's decision to dismiss an alternative using the median of U.S. Highway 101 or 1-280 through the Peninsula without analysis violated CEQA. The Court finds that the FPEIR studied a reasonable range of alternatives and presented a fair· and unbiased analysis. There were dozens of d~fferent ways to build the HST to connect the Bay Area and the Central Valley. The EIR divided the study area into six study corridors, examined different alignment alternatives and station locations options within each corridor, and further broke down the alignment alternatives into segments. Substantial evidence supports the FPEIR's discussion of operational and environmental issues related to the Altamont Pass alternatives. The potential environmental impacts of . the alternatives were discussed in Chapter 3 of the FPEIR. Chapter 7 of the EIR summarizes and compares the environmental consequences of 21 representative network alternatives, defining the major tradeoffs' among the 21 possible network alternatives. This fostered informed 22 public participation and decision-making. (Laurel Heights 23 24 25 26 27 28 Improvement Assn. v. Regents of the Univers~ty of California ("Laurel He~ghts In) (1988) 47 Cal.3d 37, 404.) The Court finds that substantial evidence in the record supports the FPEIR's explanation that putting the HST system over the existing, out-of-service Durnbarton Rail Bridge is not reasonable. (See, e.g., GB003926-27 [existing retrofit plans involve only a single track], B006687 [HST requires 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 .~ 26 27 28 two separated and dedicated tracks], B006368, B006687, B006742.) The EIR reasonably concludes that a shared Caltrain/HST Dumbarton crossing would require at least a new double track bridge. (B003926-927, B006687; G000809.) The Bay Area regional Rail Plan reached the same conclusion. (D001484.) Furthermore, the existing Dumbarton Rail Bridge has two swing bridges that pivot to allow ship traffic, a systemic vu~nerability which is inconsistent with the speed, reliability and safety requirements of the HST system. (B006687, B004044.) The Court also finds that the FPEIR reasonably concluded that train-splitting was not a reasonable alternative, and that avoiding additional branch splits would beneflt traln operations and service. The FPEIR and theCEQA Findings treat the branch lssue equally for both Altamont Pass and Pacheco Pass. The Court also finds that the FPEIR accurately describes construction challenges for the Altamont Pass with a Bay crossing or using the I~880 median. The challenges for a Bay crossing include loss of wetland habitats in the Bay associated with a new Bay crossing, the potential difficulty of obtaining the types of permits and environmental clearances needed to build a new Bay crossing because of the limits which federal law imposes on activities within the Don Edwards National Wildlife Refuge, and the permitting jurisdiction of the Bay Conservation and Development Commission. The record shows that the construction challenges for use of the 1-880 median are complex - a complexity also recognized by the Metropolitan Transportation Commission. 18 1 The Court further concludes that the record supports, 2 the Authority's decision to exclude from further detailed 3 study an alternative using the median of U.S. Highway 101 or 4 1-280 through the Peninsula. The primary reason for 5 6 7 8 9 10 11 12 13 14 15 16 17' 18 19 20 21 22 23 24 25 26 27 28 eliminat1ng these alignment alternatives was the need to construct an aerial guideway for the train adjacent to and above,the existing freeway, while maintaining freeway access and capacity during construction. Such need would result in substantially increased construction costs and constructability 1ssues. These a11gnments would also have significant or potentially significant environmental impacts, due to height and proximity to wildlife preserves. The evidence supports the elimination of the 101 and 280 alignment alternatives from detailed study. III. WHETHER THE AUTHORITY IMPROPERLY REFUSED TO RECIRCULATE THE DRAFT PROGRAM EIR AFTER UNION PACIFIC'S ANNOUNCEMENT OF ITS 'UNWILLINGNESS TO ALLOW USE OF ITS RIGHT-OF-WAY Petitioners contend that portions of the Pacheco alignment as analyzed by respondent are dependent upon the use of Union Pacific Railroad's right-of-way, and that respondent improperly refused to recirculate the DPEIR after Union Pacific Railroad announced its unwillingness to allow use of its right-of-way shortly before respondent's approval of the Pacheco alignment. Respondent contends that the alignment is not dependent upon the use of Union Pacific's right-of-way. However, this Court concludes that various drawings, maps and photographs within the administrative record strongly indicate that it is. The record further indicates 19 1 that if the Union Pacific right-of-way is npt available, 2 there may not be sufficient space for the right-of-way 3 needed for the HST without either impacting the Monterey 4 Highway or without the takings of additional amounts of 6 residential and commercial property. 6 These are significant impacts which were sufficient to 7 8 9 10 11 12 13 14 15 16 17 18 trigger the recirculation of the FPEIR~ However, respondent failed to take such further action after it received Union Pacific's statement of its position. IV. WHETHER THE AUTHORITY FAILED TO CONSIDER OR RESPOND TO MENLO PARK'S COMMENT LETTER ON THE DPEIR This issue is moot in light. of the Court's ruling denying the motion to augment the administrative record. In that ruling, the Court determined that the evidence was insufficient to establish that Menlo Park's comment letter , was received by the Authorlty. The Authorlty was not required to consider or respond to a comment letter it did not receive. v. RESPONDENT'S CONTENTION THAT PETITIONERS FAILED TO 19 EXHAUST ADMINISTRATIVE REMEDIES 20 Respondent contends that petitloners failed to exhaust 21 administrative remedies as to any defect in the respondent's 22 CEQA findings on impacts and mitigation, and that therefore 23 the exhaustion of administrative remedies doctrine codified 24 in Public Resources Code section 21177 bars petitioners' 26 claim that respondent's CEQA findings on impacts and 26 27 28 mitigation are not supported by substantial evidence. As stated in the Court's discussion of a.rguments concerning lmpacts, supra, the Court concludes that petitioners 20 1 exhausted their administrative remedies as to the issues 2 raised in this case. 3 4 5 VI. PALO ALTO'S AMICUS CURIAE BRIEF 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Palo Alto was granted leave to file an amicus brief. However, its brief has raised legal issues not raised and briefed by the parties, including challenges to the use of a second program EIR, the Authority's treatment of land use compatibility, and an alleged failure to consult Palo Alto. For this reason its arguments have been disregarded by the Court. VII. CONCLUSION The Court finds petitioners have met their burden of showing that the EIR contains an inadequate description of the project, that respondent's finding that mit~gation strategies will reduce the vibra.tion impact to a less-than significant level is not supported by substantial evidence, that as a resuLt of the FEIR's inadequate description of the project its land use analysis was inadequate, and that respondent improperly failed to recirculate the FPEIR upon receipt of Union Pacific's statement of its position 22 regarding its right-of-way. The petition for writ of 23 mandate is granted on these grounds. 24 Petitioners' other contentions are without merit. 25 26 27 28 VIII. DISPOSITION Petitioners shall prepare a judgment consistent with this ruling and in accordance with California Rules of Court, rule 3.1320 and Local Rule 9.16. Petitioners shall . also prepare a writ for ~ssuance by the'clerk of the court. 2l 1 Petitioners shall recover their costs pursuant to a 2 memorandum of costs. 3 4 5 DATED: August '26, 2009 6 7 8 9 10 11 12 13 14, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE BY MAILING (C.C.P. Sec. 1013a(3)) It the Clerk of the Superior Court of California. County of Sacramento, certify that 1 am not a party to this cause. and on the date shown below I served the foregoing RULING by depositing true copies thereof, enclosed in separate, sealed envelopes with the postage fully prepaid, In the Umted States Mall at Sacramento, California, each of which envelopes was addressed respectively to the persons and addresses shown below. Stuart Flashman Attorney at Law 5626 Ocean View Drive Oakland, CA 94618 Jeff Hoffman Attorney at Law 132 Colendge Street #8 San FrancIsco, CA 94110 Danae Aitchison Attorney at Law 1300 I Street #Suite 125 Sacramento, CA 94244 Kristina Lawson, Arthur Coon Attorney at Law 1331 N California Blvd., Fifth Floor Walut Creek. Ca 94596 I. the undersigned deputy clerk, declare under penalty of perjury that the foregOing IS true and correct. Superior Court of California, County of amento Dated' .AUG 26 200i 1 z4 .ATTACHMENTD City Council High Speed Rail Subcommittee Guiding Principles Adopted May 18, 2009 The City Council High Speed Rail Subcommittee, consisting of four members, is designated by the City Council to represent the City in public in meetings with community groups and stakeholders, when speaking to other public agencies, when providing written correspondence in advocating for legislation related to high speed rail. The Subcommittee will have the authority to speak on behalf of the City Council at hearings on short notice when full City Council discussion at a regularly scheduled Council meeting is not feasible. In such cases the Subcommittee should be guided by broad principles that are consistent with existing City Comprehensive Plan and adopted City Council policies. In order to ensure consistency with existing City Council positions and policies, the Subcommittee will be guided by the following principles: • The City is supportive of efforts to improve accountability and effective governance of high speed rail planning and operations. • The City advocates advancing economic feasibility analysis and project financing options by High Speed Rail Governing Body to implement selected alternatives. • The Ad Hoc committee will work with peninsula cities coalition to draft Memorandum of Understanding with Caltrain and HSRA and return to full Council for review and approval. • The City understands the opportunity to apply for Federal stimulus funding but is concerned that enough time is allowed for appropriate analysis, public process, and decision making. • The City recognizes that High Speed Rail, if done correctly, has the potential to minimize adverse impacts and be beneficial to the community. • While acknowledging that the current direction for the San Jose to San Francisco High Speed Train project is to use the Caltrain right-of-way as the for the high speed rail corridor between San Jose and San Francisco, the City is open to and could support alternative alignments. • The Ad Hoc Committee will be guided by the City of Palo Alto Scoping Comments for the California High Speed Rail Authority's San Francisco to San Jose High Speed Train (HST) Environmental Impact Report/Environmental Impact Statement (EIR/BIS). • The City supports Caltrain electrification and improved commuter rail services between San Francisco and San Jose. The City supports evaluation of operating conditions along the Caltrain right-of-way that would be conducive to a high speed rail intercity connection in San Jose, with improved Caltrain commuter rail service between San Jose and San Francisco. • The City is supportive of exploring creative urban design and use of context sensitive design processes that consider community values in collaborative community-sensitive planning and for the high speed rail project. • The Subcommittee shall provide monthly reports to the Council on the activities of the Peninsula cities Consortium. • The Subcommittee will meet regularly with community leaders and stakeholders to inform and involve the larger Palo Alto community in the planning, review, oversight and decision-making for the San Francisco to San Jose HST project.