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)