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HomeMy WebLinkAbout1984-10-09; City Council; 7905; Complaint Regarding Bullet Train & LawsuitCITY F CARLSBAD - AGENDA AB## 72 o -5'- TITLE: REVIEW OF COMPLAINT REGARDING DEPT. HD.� MTG. 10/9/84 BULLET TRAIN AND APPROPRIATING FUNDS CITY ATTY DEPT. CM FOR LAWSUIT ,�. CITY MGR. RECOMMENDED ACTION: Review and consider draft complaint and appropriate funds as deemed appropriate. ITEM EXPLANATION: Councilmember Prescott asked that this item be placed on the agenda for Council consideration. A draft complaint prepared by special counsel has been prepared for filing in Superior Court. The draft complaint is attached for Council review. FISCAL IMPACT: The City will share in the cost of the lawsuit. If the cities prevail in this suit, defendants may be required to pay our attorney fees. The City of Carlsbad's share of the costs of the suit may be as much as $4,000.00. Letter from Burke, Williams & Sorensen dated 9/26/84. Resolution No-777r appropriating $4,000.00 for the City's share of the lawsuit. MARTIN J. BURKE' THOMAS H. DOWNEY GEORGE W TACKABURY' PETER M. THORSON JAMES S BRADSHAW JR.' HAROLD A BRIDGES MARK C ALLEN. JR.' CHERYL J. KANE RICHARD R. TERZIAN' RAYMOND J. FUENTES MARTIN L. BURKE' RONALD E LEVINE CARL K. NEWTON' CHARLES L. EDOLEMAN J. ROBERT FLANORICK' VIRGINIA R, PESOLA OEN141S P. BURKE' S. PAUL SRUGUERA LELAND C. DOLLCY' MARK S. COLLIER COLIN LENNARO' MICHELE R. VADON R. MICHAEL WILKINSON' B. DEREK STRAATSMA BRIAN J. SEERY' NEIL C. EVANS THOMAS J. FEELEY' SCOTT F FIELD NEIL F. YEAGER' CRISTINA L SIERRA BR(AN A. PIERIK' JOHN W BELCHER KATHERINE E, STONE' DANIEL D. LAUFCN13ERG CHARLES M. CALDERON' RAYMOND P. MULLIGAN 'PROTESSIONAL CORPORATION LAW OFFICES BURKE, WILLIAMS & SORENSEN SUITE 3300 707 WILSHIRE BOULEVARD LOS ANGELES, CALIFORNIA 90017 VIA EXPRESS MAIL September 26, 1984 �L SEP 1 4 N ci ._F wJ John W. Witt, City Attorney of City of San Diego James G. Rourke, City Attorney City of Tustin Charles Revlett, City Attorney City of Oceanside Vincent F. Biondo, Jr., City Attorney, City of Carlsbad Roger Krauel, City Attorney City of Del Mar David JP Winkler, Attorney for United Citizens Coastal Protective League Re: Bullet Train ------ Gentlemen: TELEPHONE 1213) 465-0101 TELEX: 671-127t CABLE ADDRESS BWSLA UW HARRY C. WILLIAMS (1912-1987) ROYAL M. SORENSEN (1914-19 B31 OF COUNSEL DWI GHT A. NEWELL G EORGE W. WAKEFIELD Enclosed for your review and consideration is a draft Complaint regarding the Bullet Train. You will note that I have listed Oceanside as the lead plaintiff to facilitate filing in the Vista Branch of the San Diego Superior Court. Very truly yours, Katherine E. Stone KES:bg Enclosure 2 1 2 3 4 5 6 10 11 12 13 14 15 16 17 18 19 20'i 21 22 231 24 25 26 27 28 CHARLES REVLETT, CITY ATTORNEY, CITY OF OCEANSIDE; JOHN W. WITT, CITY ATTORNEY CITY OF SAN DIEGO; JAMES G. ROURKE, CITY ATTORNEY, CITY OF TUSTIN; VINCENT F. BIONDO, JR., CITY ATTORNEY, CITY OF CARLSBAD; ROGER KRAUEL, CITY ATTORNEY, CITY OF DEL MAR; and BURKE, WILLIAMS & SORENSEN, SPECIAL COUNSEL KATHERINE E. STONE 707 Wilshire Boulevard, Suite 3300 Los Angeles, CA 90017 Telephone: 213/485-0101 Attorneys for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO CITY OF OCEANSIDE, CITY OF SAN DIEGO, CITY OF TUSTIN, CITY OF CARLSBAD and CITY OF DEL MAR, municipal corporations, Plaintiffs, V. DEPARTMENT OF TRANSPORTATION OF THE STATE OF CALIFORNIA, Defendant. CASE NO. COMPLAINT FOR DECLARATORY RELIEF (C.C.P. §1060) Plaintiffs allege: 1.. Plaintiff, CITY OF OCEANSIDE, is a general law city organized and existing under the laws of the State of California and located in the County of San Diego; Plaintiff, CITY OF SAN DIEGO is a chartered city organized and existing under the laws of the State of California and located in the County of San Diego; Plaintiff CITY OF TUSTIN, is a general law city organized and existing under the laws of the State of 13 I California and located in the County of Orange; Plaintiff, CITY 2 OF CARLSBAD, is a general law city organized and existing under 3 the laws of the State of California and located in the County of 4 San Diego (hereinafter referred to collectively as "Cities"). 5 2. Defendant, Department of Transportation of the 6 State of California, is a Department of the Business, Transporta- 7 tion and Housing Agency of the State of California and has 8 respc:•sibility for the transportation needs of the State of 9 California (Gov't Code §§ 14001, 14030) (hereinafter referred 10 to as "Caltrans"). 11 3. In the 1982 legislative session, the California 12 Legislature adopted Assembly Bill No. 3647 authored by Assemblyman 13 Young (codified as Ch. 1553, Stats. 1982, hereinafter referred 14 to as "A.B. 3647"). An actual controversy has arisen and now 15 exists between plaintiffs and defendant concerning their respec- 16 tive rights and duties pursuant to AB 3647. 17 4. A.B. 3647 provided, inter alia, for the amendment 18 of Public Resources Code Section 21080 which purported to create 19 the following exemptions from the California Environmental 20 Quality Act (Pub. Res. Code § 21000 et 5_eg.("CEQA")): 21 (17) "A project for the granting of an 22 easement or franchise for the use 23 of highway or street rights -of -way 24 for high-speed intercity passenger 25 rail purposes," and 26 (18) "A project for the granting of a 27 certificate of public convenience and 28 necessity for a railroad corporation -2- /J �l Y 1 whose primary business is the trans- 2 portation of passengers, notwithstanding 3 Section 1001 and 1002 of the Public 4 _ Utilities Code, except that the 5 commission may require the applicant 6 to submit information regarding 7 energy requirements." 8I (Pub. Res. Code Section 21080(b)(17) and (18).) 9 5. The purported exemptions from CEQA bear a direct 10 impact on a passenger train project that is currently being 11 planned to traverse a corridor between Los Angeles airport, 12 downtown Los Angeles and downtown San Diego. The project as 13 proposed by the American High Speed Rail Corporation (hereinafter 14 "AHSRC"), is a high speed passenger train system (hereinafter 15 "The Bullet Train") based on technology developed by the Japanese 16 National Railway. The Bullet Train would traverse 130.4 miles 17 through 3 counties and 31 cities, at a maximum cruising speed of 18 160 miles per hour. The proposed route requires some 260 cross- 19 ings of existing roads and railroad lines, as well as 20 miles of 20 tunnels, 40 miles of elevated viaducts with substantial cut and 21 fill operations, over environmentally and geologically sensitive 22 lands, through residential neighborhoods and commercial areas. 23 Although currently being represented as a private project 24 the fiscal burden of the 3.1 billion dollar system will ultimately 25 be borne by the taxpayers of the State of California. 26 6. If applicable to the Bullet Train project the 27 purported exemptions contained in A.B. 3647 would circumvent CEQA 28 and the State CEQA guidelines and thereby significantly impinge -3- 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on the rights and interests of Cities. Some of the public agencies responsible for the review and approval of the Bullet Train project have made determinations pursuant to A.B. 3647 that contravene the environmental review process prescribed by CEQA and resulting in potentially significant damage to the rights and interests of Cities. 7. Cities each have a direct beneficial interest in ensuring full compliance with CEQA because they are each "responsi- ble agencies" under CEQA as to the Bullet Train project, and because the project will cause significant adverse environmen- tal impacts within their geographical boundaries and to the residents thereof. For example, the Bullet Train would cause a variety of adverse environmental impacts in the City of San Diego; adversely impact residential neighborhoods in Tustin, split the redevelopment area in Oceanside, and degrade the environmentally sensitive coastline along Carlsbad and Del Mar. The Bullet Train project will have many long and short-term adverse environemntal impacts. There will be direct, immediate and adverse impacts on earth, air, water, plant life, animal life, light and glare, land use, risk of upset, population, 'housing, transportation/circulation, public services, energy, utilities;'*human heath, aesthetics, recreation and cultural resources; mandatory findings of significance are therefore required. All of the above mentioned impacts would occur within the boundaries of one or more of Cities. 8. Cities contend that A.B. 3647 is unconstitutional both on its face and as applied to the Bullet Train project in -4 - (11 1 that it deprives the public of its fundamental right to a decent 2 and protected environment without a meaningful review process, 3 including constitutionally required hearings. 4 9. Cities further contend that because A.B. 3647 did 5 not purport to exempt the "whole of the action" involved in the 6 proposal to construct the Bullet Train, the purported exemptions 7 in A.B. 3647 have no application to the Bullet Train project and 8 all public agencies must fully comply with the CEQA review 9 process. 10 10. The Public Utilities Commission ("PUC") has 11 determined that A.B. 3647 precludes its participation in the 12 environmental review process for the Bullet Train project. 13 Under normal circumstances, the PUC would act as the lead agency 14 and prepare an Environmental Impact Report (hereafter "EIR") for 15 the project. However, in this instance, the PUC will process an 16 application for a Certificate of Public Convenience and Necessity 17 without any environmental review by that agency. 18 11. Defendant Caltrans has assumed the role of lead 19 agency for the Bullet Train project. However Caltrans has 20 indicated that it will not analyze the whole project as required 21 by CEQA; it will not do a project feasibility study as required 22 by CEQA. In order to prepare a legally adequate EIR, there must 23 be specific analysis of a "no project" alternative. Caltrans 24 cannot perform a meaningful analysis of the required "no project" 25 alternative if it does not analyze project feasibility. Caltrans 26 has therefore excluded the alternative of "no project" from its 27 proposed EIR. Thus, it is impossible for Caltrans to prepare 28 -5- 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26j �I 27!1 28 an adequate and thorough EIR complying with CEQA; which EIR is necessary to protect the interests of Cities herein. 12. It can be seen with certainty that the Bullet Train will have a significant effect on the environment and that a full EIR is required. Nevertheless in reliance on its inter- pretation of AB 3647, Caltrans is not proceeding in the manner required'by law. The whole project, including the question of project feasibility, must be analyzed in the EIR and no agency can issue any permits for the Bullet Train project until the EIR has been certified by the proper lead agency in accordance with CEQA. Caltrans' fragmented approach cannot result in adequate ,environmental review or an adequate EIR and deprives Cities and the pubilc of a meaningful opportunity to be heard on the environ- mental impacts of the project. 13. The manner in which Caltrans is proceeding with the Bullet Train project will deprive the public of the funda- mental right to a protected environment without due process of the law. The public will be deprived of a meaningful hearing on the environmental impacts of the project and consequently on the merits of the project itself. The due process right to a meaning- ful hearing before governmental approval of a project with adverse environmental impacts is the objective of the entire EIR. process. Any hearings that may be held by Caltrans will be constitutionally defective because its interpretation of AB 3647 is that it does not have the power to determine the merits of the whole project. Thus, A.B. 3647 deprives the public of its right to a decent environment without a meaningful hearing. I/// 1 2 3 4 5 6� 7 8 9 10 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. Since Caltrans is proceeding pursuant to A.B. 3647 and in a manner that is violative of Cities' legitimate rights and interests, an actual controversy has arisen and now exists between plaintiffs and defendant concerning their respective rights, duties, and responsibilities. Cities contend that: (a) AB 3647 is unconstitutional on its face insofar as it purports to exempt a high speed passenger train from CEQA; (b) AB 3647 is unconstitutional as applied to the Bullet Train project; (c) AB 3647 is not applicable to the Sullet Train project; (d) Defendant Caltrans and all public agencies must fully comply with CEQA prior to issuing any permit for the Bullet Train project; and i (e) That the whole project, including project feasibility must be analyzed under CEQA. Caltrans contends that AB 3647 is valid and subsisting; that it is applicable to the Bullet Train project; and that it is proceeding lawfully in preparing a limited environmental review. 15. Plaintiffs will suffer irreparable and lasting injury unless' delcaratory relief is granted and unless Caltrans is enjoined from proceeding under AB,3647. WHEREFORE, plaintiffs pray for judgment as follows: 1. That the court declare that: -7- 1 2 3 4 5 6 7 8 91 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (a) AB 3647 is unconstitutional on its face insofar as it purports to exempt a high speed passenger train from CEQA; (b) AB 3647 is unconstitutional as applied to the Bullet Train project; (c) AB 3647 is not applicable to the Bullet Train project; (d) Defendant Caltrans and all public agencies must fully comply with CEQA prior to issuing any permit for the Bullet Train project; and (e) That the whole project, including project feasibility must be analyzed under CEQA. 2. That defendant Caltrans be enjoined from relying on AB 3647 to avoid the requirements of CEQA. 3. For costs of suit herein incurred; and 4. For such other and further relief as the court deems proper. Dated: , 1984 Respectfully submitted, CHF,RLES REVLETT, CITY ATTORNEY, CITY OF OCEANSIDE; JOHN W. WITT, CITY ATTORNEY CITY OF SAN DIEGO; JAMES G. ROURKE, CITY ATTORNEY, CITY OF TUSTIN; VINC ENT F. BIONDO, JR., CITY ATTORNEY, CITY OF CARLSBAD; ROGER KRAUEL, CITY ATTORNEY, CITY OF DEL MAR; and BURKE, WILLIAMS & SORENSEN, SPECIAL COUNSEL BY KATHERINE E. STONE Attorneys for Plaintiffs -8- /a 1 2 3 4 5 6 7 8 91 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 7778 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROPRIATING $4,000.00 FROM THE CONTINGENCY FUND FOR THE BULLET TRAIN LAWSUIT WHEREAS, the City Council has determined to participate in a lawsuit against the proposed Bullet Train and, WHEREAS, the City's initial share of the cost of the lawsuit is estimated at $4,000.00; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad as follows: 1. That $4,000.00 is hereby appropriated from the Contingency Fund (01-19-50-2499) to the City Attorney Professional Services account (01-12-10-2470) to fund the City's share of the Bullet Train lawsuit. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad held the 9th day of October , 1984, by the following vote, to wit: AYES: Council Mksnbers Casler, Lewis, Kulchin, Chick and Prescott NOES: None ABSENT: None d-61'. ') MARY H. ASLER, Mayor ATTEST: ALETHA L. RAUTENKRANZ, City Cl rk (SEAL)