MARIN SUPERIOR COURT
DATE: 01/08/08 TIME: 9:00 A.M. DEPT: E CASE NO: CV074645
PRESIDING: HON. JAMES R. RITCHIE
REPORTER: MARGARET COLLINS CLERK: VITA JOHANSON
PLAINTIFF: CITY OF NOVATO
vs.
DEFENDANT: NORTH COAST RAILROAD
AUTHORITY
NATURE OF PROCEEDINGS: MOTION – FOR PRELIMINARY HEARING [PETR] CITY
OF NOVATO
RULING
APPEARANCES REQUIRED.
THE COURT HAS REVIEWED THE PAPERS SUBMITTED BY PETITIONER CITY
OF NOVATO, RESPONDENT NORTH COAST RAILROAD AUTHORITY (“NCRA”),
REAL PARTIES IN INTEREST NORTHWESTERN PACIFIC RAILROAD COMPANY
(“NWPCo”), CALIFORNIA DEPARTMENT OF TRANSPORTATION, CALIFORNIA
TRANSPORTATION COMMISSION, AND MASS. ELECTRIC, AND AMICI CURIAE
FRIENDS OF THE EEL RIVER, et al. BASED ON THAT REVIEW, THE COURT IS
INCLINED TO GRANT THE PETITION IN PART.
THE CITY HAS STANDING TO BRING THE PETITION, BECAUSE IT HAS A
PROPRIETARY INTEREST IN PROTECTING THE PUBLIC STREETS AND PUBLIC
PEDESTRIAN RIGHTS OF WAY WITHIN ITS BOUNDARIES. (10/11/07 YOUNG
DECL.)
THE SECOND AMENDED PETITION (“SAP”) ALLEGES THAT THE 2/06/07 AND
6/04/07 NOTICES OF EXEMPTION WERE FILED BEFORE THE APPLICABLE
PROJECTS WERE APPROVED, AND, THEREFORE, THE STATUTE OF
LIMITATIONS (PUB. RES. CODE §21167(d)) HAD NOT BEGUN TO RUN WHEN THE
ORIGINAL PETITION WAS FILED. AS TO THOSE NOTICES OF EXEMPTION,
NCRA HAS NOT SHOWN THAT IT APPROVED THE PROJECTS BEFORE FILING
THE NOTICES OF EXEMPTION, SO AS TO TRIGGER THE STATUTE OF
LIMITATIONS. THE ACTIONS ON 3/08/06 AND 8/16/06 BY THE NCRA BOARD, AS
SHOWN IN THE CITED PORTIONS OF THE ADMINISTRATIVE RECORD (“AR”),
DO NOT CONSTITUTE “APPROVAL” OF THE PROJECTS, BECAUSE NCRA DID
NOT, BY EITHER SUCH ACTION, “AGREE[] TO BE LEGALLY BOUND TO TAKE
THAT COURSE OF ACTION.” CITY OF VERNON v. BOARD OF HARBOR COMRS.
(1998) 63 CAL.APP.4th 677, 688; GUIDELINES FOR IMPLEMENTATION OF THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA GUIDELINES”)
§15352(a). (III AR 664; III AR 872-873; STOGNER DECL. ¶¶ 14, 23) IT WAS ONLY BY
ENTERING INTO THE CONTRACTS FUNDED BY THOSE GRANTS, THAT NCRA
BECAME “LEGALLY BOUND” TO UNDERTAKE THE WORK. AS A RESULT, THE
CITY HAD 180 DAYS FROM THE TIME OF PROJECT APPROVAL, IN WHICH TO
FILE THE ACTION. COUNTY OF AMADOR v. EL DORADO COUNTY WATER
AGENCY (1999) 76 CAL.APP.4th 931, 963-965; CEQA GUIDELINES §15112, subdivs.
(c)(2), (c)(5)(B). THEREFORE, THE PETITION IS TIMELY TO CHALLENGE THE
NOTICES OF EXEMPTION.
AS TO THE 9/2006 LEASE BETWEEN NCRA AND NWPCo, NCRA HAS NOT SHOWN
THAT THE PETITION IS UNTIMELY. THERE IS NO “CLAIM” FOR VIOLATIONS
OF THE BROWN ACT (GOV. CODE §54950 et seq.), IN ANY CAUSE OF ACTION OF
THE WRIT PETITION OR COMPLAINT FOR DECLARATORY RELIEF.
1. AS TO CONSTRUCTION WORK THAT HAS ALREADY BEEN COMPLETED AND
IS AWAITING PAYMENT, AND CONSTRUCTION WORK THAT WAS ALREADY
UNDERWAY AS OF 10/15/07 (THE DATE OF THE EX PARTE HEARING ON THE
CITY’S APPLICATION FOR TEMPORARY RESTRAINING ORDER (“TRO”)), THE
CITY HAS NOT SHOWN THAT IT WOULD SUFFER IRREPARABLE HARM IN THE
ABSENCE OF A PRELIMINARY INJUNCTION. THE CITY HAS NOT SHOWN THAT
IT WILL BE HARMED BY ANY WORK UNDERWAY AS OF 10/15/07, EITHER
BEYOND OR WITHIN ITS BOUNDARIES. THE HARM ALLEGED IN THE SAP (¶¶ 7,
53) APPARENTLY WOULD ARISE FROM OPERATION OF THE TRAINS, NOT
FROM THE CONSTRUCTION WORK ITSELF. THE CITY’S EVIDENCE IS TOO
SPECULATIVE AND ATTENUATED TO SHOW INTERIM HARM FROM THE
ONGOING CONSTRUCTION WORK. (YOUNG DECL.) MOREOVER, IN ITS
OPENING AND REPLY MEMORANDA, THE CITY IDENTIFIES THE
“MOMENTUM” ITSELF OF NCRA’S ACTIVITIES AS THE INTERIM HARM.
HOWEVER, ITS CITED CASES (BAKERSFIELD CITIZENS FOR LOCAL CONTROL
v. CITY OF BAKERSFIELD (2004) 124 CAL.APP.4th 1184; SAN JOAQUIN
RAPTOR/WILDLIFE RESCUE CENTER v. COUNTY OF STANISLAUS (1994) 27
CAL.APP.4th 713) DO NOT SUPPORT SUCH A CONCLUSION.
ALSO, THE CITY DOES NOT SHOW HOW “IT WILL BE TOO LATE TO
INCORPORATE THE MITIGATION MEASURES” IF A PRELIMINARY
INJUNCTION IS NOT ISSUED. A SINGLE REFERENCE TO NOISE AS A
“POTENTIALLY SIGNIFICANT IMPACT” (II AR 649) IS INSUFFICIENT TO MAKE
A FACTUAL DETERMINATION THAT “A PROJECT ACTIVITY ‘WILL PREJUDICE
THE CONSIDERATION OR IMPLEMENTATION OF PARTICULAR
IMPLEMENTATION MEASURES OR ALTERNATIVES TO THE PROJECT.’” SAN
JOAQUIN, supra, 27 CAL.APP.4th AT 741 (cit. om.). IF CEQA REVIEW DISCLOSES
THAT SOME OF THE CONSTRUCTION WORK WILL HAVE TO BE DISMANTLED
AND/OR REDONE, THAT IS A RISK TO BE BORNE BY NCRA AND ITS
CONTRACTOR(S). BAKERSFIELD, supra, 124 CAL.APP.4th AT 1202-1204.
2. AS TO CONTRACTS THAT HAD NOT BEEN AWARDED YET AS OF 10/15/07,
AND CONTRACTS THAT HAD BEEN AWARDED BUT WHERE NO
CONSTRUCTION WORK HAD COMMENCED AS OF 10/15/07, THE CITY HAS
SHOWN A LIKELIHOOD OF SUCCESS ON THE MERITS, AND ALSO THAT IT
WOULD SUFFER IRREPARABLE HARM IN THE ABSENCE OF A PRELIMINARY
INJUNCTION. THE COURT HAS DETERMINED THAT 10/15/07 IS A LOGICAL
“CUTOFF” DATE BECAUSE PREPARATION OF THE EIR IS CURRENTLY
UNDERWAY, AND BECAUSE NCRA AND ITS CONTRACTORS KNEW, NO LATER
THAN THE TRO HEARING, THAT A PRELIMINARY INJUNCTION WAS
POSSIBLE, YET PROCEEDED IN LIGHT OF THIS KNOWLEDGE.
REGARDING LIKELIHOOD OF SUCCESS: AS DISCUSSED ABOVE, IT APPEARS
THAT NCRA VIOLATED CEQA BY FILING THE DISPUTED NOTICES OF
EXEMPTION BEFORE PROJECT APPROVAL, AND BY ENTERING INTO
CONTRACTS AND ALLOWING WORK TO COMMENCE BEFORE PERFORMING
THE REQUIRED CEQA ANALYSIS. IT ALSO APPEARS THAT NCRA WAS
ATTEMPTING TO AVOID CONDUCTING CEQA REVIEW BY CLAIMING THAT AN
ENVIRONMENTAL IMPACT REPORT (“EIR”) WAS NOT NECESSARY FOR THE
CONSTRUCTION WORK ITSELF, BUT WAS NECESSARY ONLY FOR THE
PLANNED OPERATION OF THE RAILWAY. INSTEAD, THE “WHOLE” PROJECT -
- WHETHER BROKEN UP GEOGRAPHICALLY, BY PHASES OF CONSTRUCTION
AND OPERATION, OR OTHERWISE -- MUST BE CONSIDERED IN CEQA
ANALYSIS. CITY OF REDLANDS v. COUNTY OF SAN BERNARDINO (2002) 96
CAL.APP.4th 398, 409; CITY OF ANTIOCH (1986) 187 CAL.APP.3d 1325, 1336. IT
FURTHER APPEARS THAT NCRA WAS AWARE THAT CEQA ANALYSIS WAS
REQUIRED FOR THE CONSTRUCTION WORK, AS DEMONSTRATED BY THE
ISSUANCE OF THE “NOTICE OF PREPARATION” IN JULY 2007. (IV AR 976-979)
NCRA AND NWPCo CITE DEL MAR TERRACE CONSERVANCY, INC. v. CITY
COUNCIL (1992) 10 CAL.APP.4th 712 TO THE EFFECT THAT A SEGMENT OF
FREEWAY EXPANSION COULD BE CONSIDERED OF “INDEPENDENT UTILITY.”
ID. AT 731-732 (disapproved on other grounds in WESTERN STATES PETROLEUM
ASSN. v. SUPERIOR COURT (1995) 9 CAL.4th 559, 570, fn.2). HOWEVER, DEL MAR
IS DISTINGUISHABLE, BECAUSE IT DID NOT ADDRESS THE PURPORTED
CONSTRUCTION/OPERATION DISTINCTION AS ADVANCED BY NCRA, AND IT
INVOLVED A CHALLENGE TO AN EIR, SO THE CEQA ANALYSIS HAD ALREADY
BEEN DONE.
REGARDING IRREPARABLE HARM: THE CITY HAS SHOWN, MORE LIKELY
THAN NOT, THAT ALLOWING COMMENCEMENT OF FURTHER
CONSTRUCTION WORK WOULD HAVE SIGNIFICANT IMPACTS ON THE CITY.
NCRA’S INITIAL STUDY, PERFORMED IN MAY 2007, INCLUDES A
DETERMINATION THAT THE PROPOSED PROJECT (CONSTRUCTION AND
OPERATION) MAY HAVE A SIGNIFICANT ENVIRONMENTAL EFFECT, THUS
REQUIRING PREPARATION OF AN EIR. (IV AR 629) AMONG OTHER THINGS,
THE STUDY IDENTIFIES NUMEROUS “POTENTIALLY SIGNIFICANT IMPACTS”
ON AIR QUALITY, BIOLOGICAL RESOURCES, GEOLOGY AND SOILS, HAZARDS
AND HAZARDOUS MATERIALS, LAND USE PLANNING, NOISE, AND
TRANSPIRATION AND TRAFFIC. (IV AR 634-637, 639-643, 647, 649, 653-654) THIS
IS SUFFICIENT TO DEMONSTRATE IRREPARABLE HARM IF FURTHER WORK
IS ALLOWED TO COMMENCE BEFORE THE EIR IS COMPLETED. SAN
JOAQUIN, supra, 27 CAL.APP.4th AT 741-742. CONVERSELY, NCRA AND REAL
PARTIES HAVE NOT SHOWN THAT THEY WILL SUFFER GREATER
IRREPARABLE HARM IF AN INJUNCTION IS ISSUED. ALTHOUGH IT IS TRUE
THAT THE CONTRACTOR(S) WILL BEAR THE RISK OF PROCEEDING WITHOUT
EIR APPROVAL (BAKERSFIELD, supra, 124 CAL.APP.4th AT 1202-1204), THIS
ALONE DOES NOT JUSTIFY ALLOWING FURTHER WORK TO COMMENCE
WHILE THE EIR IS PENDING.
THE CITY’S EVIDENTIARY OBJECTIONS TO THE STOGNER DECLARATION
ARE OVERRULED. THE CITY’S MOTION TO AUGMENT THE AR IS GRANTED.
NCRA’S OBJECTION TO ADMISSION OF THE ORIGINAL PETITION, THE
AMENDED PETITION, AND/OR THE SAP AS EVIDENCE AT THE HEARING IS
SUSTAINED.
(THE CITY SUBMITTED A 30-PAGE REPLY BRIEF, WHICH INCLUDES 19
SUBSTANTIVE FOOTNOTES PRESENTING FURTHER FACTS, ARGUMENTS, AND
CITATIONS TO AUTHORITIES AND THE AR, THEREBY EFFECTIVELY
INCREASING THE LENGTH BY AT LEAST 5 PAGES. THE CITY DID NOT FIRST
OBTAIN AN ORDER GRANTING LEAVE TO FILE A REPLY MEMORANDUM
LONGER THAN 10 PAGES. CALIF. RULES OF COURT, RULE 3.1113, subdivs. (d)-(e).
THE COURT COULD HAVE DECLINED TO CONSIDER THE BRIEF
ALTOGETHER, OR TO CONSIDER ANYTHING BEYOND PAGE 10. ID. AT
subdiv.(f). THE COURT HAS CONSIDERED THE ENTIRE REPLY BRIEF, AND
HEREBY IMPOSES SANCTIONS OF $199.00 ON THE CITY AND ITS COUNSEL,
WALTER & PISTOLE, FOR THIS PROCEDURAL DEFECT, WHICH
SUBSTANTIALLY INCREASED THE COURT’S BURDEN OF ANALYSIS.)
OF COURSE, WITH THIS RULING, THE COURT HAS NOT REACHED ANY
CONCLUSION AS TO WHETHER THE PROPOSED RAILWAY EXPANSION IS
APPROPRIATE OR NOT. HOWEVER, AS NOTED THE COURT HAS CONCLUDED
THAT THE PENDING ENVIRONMENTAL ANALYSIS SHOULD BE CONDUCTED
AND CONSIDERED BEFORE MORE WORK IS DONE.