Right on the Law Not Enough?

NFSR finds itself in an odd position.  The California Supreme Court agreed with NFSR that Expo violated CEQA.   Specifically, the court found that Expo violated CEQA by only using a projected future baseline and not using an existing baseline.  The ruling can be found here.

Despite having “won on the law,” NFSR’s petition to have the line re-studied using a proper baseline was denied.  Needless to say, we are confused and disappointed.  While agreeing with NFSR on the law, the court declined to reverse the Expo project based on the following logic: 

“Although the EIR failed to analyze the project’s impacts on existing traffic congestion, it did include an extensive analysis of year 2030 congestion effects, finding no significant adverse impacts. That detailed analysis demonstrates the lack of grounds to suppose the same analysis performed against existing traffic conditions would have produced any substantially different information.”

In short, the court has said that a 2030 projection, while improper, somehow provided complete insight into what would occur years earlier.

It is no surprise that NFSR respectfully disagrees.  While we are gratified to have been proven correct on the law, we are truly stunned that the court has found that a projected future baseline 23 years in the future somehow can accurately predict conditions in the near- and mid-term.  Much can change in 23 years not the least of which is governmental budgets, technology, new understanding of fire response times and population estimates.  In fact, just during the pendency of this case, new census numbers were released that were materially and substantially different from those used in the Expo EIR.  

One of the judges specifically agreed with NFSR and stated: 

“I respectfully disagree with the court’s conclusion that the EIR‟s failure to measure traffic congestion and air quality impacts against a baseline of existing conditions “did not deprive agency decision makers or the public of substantial information relevant to approving the project.”

He went on to say:

“Without knowing how significant this transient impact on traffic congestion might be, how are the public and decision makers to decide whether the short-term pain is worth the long-term gain promised by the light-rail project?

NFSR further respectfully disagrees with the court’s finding on the parking issue.  

This issue involved the inevitable parking problems in the areas surrounding the stations and Expo’s promise to “work with” the City to put in preferential parking districts if needed.  NFSR argued that promising to “work with” the City on the installation of a parking district didn’t guarantee relief and was not within the power of Expo – or the City, and represented “deferred mitigation.”  The court disagreed, finding:

CEQA, however, allows an agency to approve or carry out a project with potential adverse impacts if binding mitigation measures have been “required in, or incorporated into” the project or if “[t]hose changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency.”

NFSR believes the court missed a critical point, namely that preferential parking districts require a vote of the people as they involve a property-related fee under Prop 218.  

NFSR’s attorneys are reviewing this unique opinion to understand what it means and does not mean. 

As we increase our understanding of the ruling and our options we will have further comments.

One thing is certain: Expo violated CEQA in the preparation of its EIR.  This should deeply concern our elected officials as they decide how to deal with the Expo line and this ruling.

NFSR case against Expo to be heard May 7, 2013

The following transaction has occurred in:

NEIGHBORS FOR SMART RAIL v. EXPOSITION METRO LINE CONSTRUCTION AUTHORITY (LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION)

Case: S202828, Supreme Court of California

Date (YYYY-MM-DD):                     2013-04-04

Event Description:                           Case ordered on calendar

Notes: to be argued on Tuesday, May 7, 2013, at 9:00 a.m., in San Francisco.

 

For more information on this case, go to:

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2015235&doc_no=S202828

                                               

California Public Utilities Commission Grants NFSR’s Petition for Rehearing of Expo Crossing Approval

The decision of the Supreme Court to grant review of NFSR’s case comes on the heels of a recent decision by the California Public Utilities Commission which granted NFSR a rehearing of all Phase 2 Expo light rail crossings previously approved.  The CPUC rehearing will address NFSR’s contentions of CEQA non-compliance as well as unresolved safety concerns, and alleged improper procedure. The CPUC has responsibility for grade crossing safety throughout the state. 

Colleen Mason Heller, board member of both NFSR and the Cheviot Hills Homeowners Association said: “The dismal safety record of the Blue Line, which shares cars and track with the Expo line, suggests that Metro and Expo have failed to create a transportation safety culture that our communities can trust. Expo’s ability and intention to create a safe, well-designed and properly studied light rail must be seriously examined.”

ALJ's 10/23/12 Scoping Memo; Expo Authority's 11/9/12 Opening Brief; NFSR's 11/9/12 Opening Brief (PDFs).

California Supreme Court Grants Neighbors for Smart Rail's Petition for Review in Expo Case

The California Supreme Court announced yesterday that the Petition for Review of Neighbors for Smart Rail (NFSR) v. Exposition Metro Line Construction Authority (Expo) has been granted. 

 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2015235&q=259006&h=919416499

Two critical issues are central to NFSR’s complaint:   First, contrary to California Environmental Quality Act (CEQA) law which states that a proper baseline to evaluate project impacts is the existing environment, the Expo Authority contends that studying hypothetical projected traffic conditions 20 years in the future is sufficient. NFSR disagrees.  We believe that, consistent with previous Supreme Court rulings, “existing” can only mean that which currently exists.

Second, NFSR agrees with CEQA that proper mitigation for project impacts must be specific and enforceable. Expo maintains that their agreement to work towards mitigating impacts is good enough. This is similar to claiming that promising to pay someone back is the same as actually paying them back. State law requires that when mitigation is accepted, it must be implemented. On Phase 2, for example, Expo admitted their project will cause parking problems around stations but failed to specify any remedy, the potential costs, or whether, in fact, any mitigation at all would be effective or feasible.  When people’s homes, security, and safety are involved, this is unacceptable.

Additionally NFSR strongly believes that, among other things, Expo did not properly study traffic impacts or emergency response delays related to the proposed new rail line. 

Terri Tippit, President of NFSR and the West of Westwood HOA said: “NFSR is gratified by the Court’s decision to review these very important issues.  Blocking Overland and Westwood 24 times per hour will have a devastating impact on traffic and public safety, and all evidence shows that Expo didn’t study it as required.”

Mike Eveloff, NFSR board member and President of the Tract 7260 Association said “Our case deals with fundamental aspects of how the State’s environmental laws will be applied.  This decision will impact every environmental impact report for every project proposed within the State.  We thank the Court for the opportunity to be heard.”

NFSR is represented by John Bowman of Elkins, Kalt, Weintraub, Reuben, Gartside in Century City.

Drew DeAscentis, NFSR board member and President of Westwood Gardens Civic Association said: “We really want to thank our lawyer John Bowman for his outstanding work in getting our case accepted by the Supreme Court.  We look forward to working with John to convince the Court on the merits of our case.”

Donating to Neighbors For Smart Rail

Please click the Donate button to the right to contribute to our efforts to get Expo Built Right.

This effort is going to require lawyers, experts and thousands of dollars in other fees and costs.

Together we can make sure that Expo doesn't block access to the 10 freeway, doesn't create cut-through traffic, doesn't put kids at risk, doesn't lock up north/south traffic, doesn't divide our neighborhoods and doesn't slow down police/fire response times.

Thank you for your contribution!

Neighbors for Smart Rail Community Meeting

 Meeting Minutes

Agenda

Terri Tippit - Welcome

Drew DeAscentis & Colleen Mason Heller - The Case for Below-Grade Expo Light Rail

Kim Christensen - Expo Light Rail Update

Mike Eveloff - What Lies Ahead

Terri Tippit - What You Can Do

Q&A

Sound from Gold Line played

Terri Tippitt - Welcome

Introduction of NFSR board members

Terri Tippit, Colleen Mason Heller, Drew DeAscentis, Mike Eveloff

February 4th Expo board meeting

Over 200 people from our community attended the hearing

SMC had 2 busloads of kids attending the hearing

2-7pm: testimony – that’s how many people spoke

SMC student testimony: there for school extra credit; after listening to everyone there is merit in studying below-grade

Drew DeAscentis - The Case for a Below-Grade Expo Light Rail

The traffic myth

At grade causes more congestion than it solves

Cut through traffic will spill into neighborhood streets

Impact to businesses

Decreased access to 10-freeway

The safety issue

Crossing hazards

Increased risks for accidents

Derailment

Delays caused to emergency services

Overland Avenue Elementary School

They are a California distinguish school; can they thrive with a train disrupting every 2.5 minutes?

Noise

Safety at crossing

Pollution from trains, idling cars

Quality of Life

Dividing a long-standing neighborhood

Attract more cars

Reduced parking for residents

Privacy

Visual blight

Increased opportunity for crime

Colleen Mason Heller - The Case for a Below-Grade Expo Light Rail

Quote from Zev Yeraslavsky (1988)

The case against below-grade

1.Too costly – CEQA regulations state that cost cannot be a factor in determining grade-crossing. CPUC says cost is the least of their 8 considerations evaluating grade crossings separations

2.Would take special engineering – Isn’t most engineering special?  The subway to the sea is going through tar and methane fields!

3.Will take longer to build but a year longer construction is better than 100 years of at grade impacts.

4.It isn’t fair to community with at-grade rail – Mark Ridley-Thomas has asked the grade-crossing policy to be reviewed.  Art Leahy is in fact looking into the policy.  Paul Koretz: Overland, Westwood, Sepulveda should qualify for grade crossing.  The solution to add more lanes is no solution.  Mark Ridley-Thomas is looking at grade-crossing policy in the Crenshaw Corridor. It doesn’t say if one line is badly designed all the others have to be, rather if one is better, you go back and improve the poorly designed ones.

The FTA noise standard is 75 db’s – the one’s they will use along the ROW will be louder than the Gold Line because there is much more traffic in WLA and obscured crossings.

Kim Christensen - Expo Light Rail Update

NFSR’s position

NFSR has been involved in this project since the beginning

Thoroughly evaluated the environmental impacts that will be caused by the project

Concluded that the project must be build below grade so that the environmental impacts can be eliminated and/or significantly reduced

Conducted community outreach, educational efforts, met with Expo authority staff, board members to discuss concerns, participated in public hearing

DEIR (Draft Environmental Impact Review)

Public comment period for the DEIR closed at the end of March 2009

Submitted a 58-pg comment letter and attachments, with assistance from qualified technical and legal professionals regarding the environmental impacts and the deficiencies of the DEIR

April 2009 – Expo board selected the right-of-way versus the Sepulveda route

FEIR (Final Environmental Impact Review)

FEIR was released on December 11, 2009 (concerns about it being released in the holiday season, not enough time for people to respond)

Hearing scheduled for January 7; NFSR worked to get it pushed back to January 14 and finally to February 4 – more time to evaluate the document and hire additional experts to assists with the analysis

NFSR submitted a 49-page comment document (plus attachments)

Believe that if properly studied, the FEIR clearly will show that a below grade design would be the environmentally superior alternative

NFSR requested that the FEIR be re-circulated as a DEIR so that the public could comment and expo would have the benefit of accurate and complete information prior to making a decision – that did not occur

February 4th, 2010

Expo board adopted a statement of overriding considerations; approved alternative 2 (ROW to Santa Monica via Colorado Blvd)

February 5th, 2010

Expo authority filed a notice of determination.

This date is important; filing begins the 30-day period in which NFSR can file a lawsuit against the Expo authority regarding the FEIR; after 30 days the statute of limitations runs out

Next steps

NFSR has retained legal counsel

Preparing a petition for writ of mandate – a request to invalidate the project approvals

CEQA lawsuits are heard before a judge, not a jury

There are 4 CEQA judges in California and one of them will hear our case

Once the lawsuit is filed, it will take 4-9 months for the case to be heard

Trial Court → Appellate Court → CA Superior Court

Potential outcomes that can be achieved by filing a lawsuit

Revision to EIR that requires studying grade-separation design options

Added/modified mitigation measures

Get the document re-circulated as a DEIR, with the opportunity for public comment

Delays to project design and construction

Changes in final project design

We feel very strongly that we have numerous strong arguments regarding challenging the doc.  The deficiencies are so significant, that we feel that a court would make the project be re-analyzed

Mike Eveloff – What Lies Ahead

Without funding, our odds drop to zero

$18,750 check from tract 7260 – will reach $25,000 to retain attorney

Our legal task is simple: prove that the EIR is flawed

How so?

They did not study an intersection east of overland; they didn’t study cut through

They didn’t study any intersection north of Pico (such as Sepulveda, Westwood)

They did not study what will happen at the station with a lack of parking

They did not study the impact to the business community – the Greater West LA Chamber of Commerce is sided with NFSR

Did not study the safety of kids at Overland Avenue Elementary

Did not address emergency service vehicles

Did not even study grade separation – THIS IS A FATAL FLAW IN THEIR EIR

For all these reasons, we will prevail

Mass transit is useless if you can’t use it and you can’t get to it

This is why the EIR is fatally flawed, and this is why it is worth the investment

This same group of HOA’s fought the Pico-Olympic one way; we’ve had numerous wins in Century City; we put together a community benefit fund (palms park = $18,000 two years in a row); won SB1818 lawsuit; revisions to the Santa Monica Blvd transit parkway; won 3 lawsuits in Century City

In each of these cases we have been told that we cannot win

When we all get together, we can win!!!!!

Paul Koretz

E-mail Paul Koretz – thank him for his statement

When you thank him, encourage him to support grade separation

Colleen Mason Heller - Bike Path Update

Friday, February 19, 2010: MTA board held a bike roundtable

The entire bike path on phase 1 and phase 2 has received a categorical exemption from DEQA and the FTA

The 0.28 mile through Cheviot Hills (“Northvale segment”) has not received a categorical exemption

Cheviot for Light Rail, Friends for Expo members say that– 7-8 homes on Northvale should give 12 feet of their property for a bike path – has NOT been studied – have allocated over 5.5 million for that ¼ mile

The community on Northvale is hanging tough!

There will be a cumulative impact with the addition of a bike path and a bike path has NOT been studied

Terri Tippit - What You Can Do

We can’t have our point of view without meeting criticism

When we asked for buses to the February 4th Expo board meeting, a blogger compared us to Hitler invading Poland

However, a lot of people feel that our voice needs to be heard

Be sure to communicate with you neighbors about what happening!  It’s been approved!  Unless we do something, it will come at grade!

This project will not only affect the community, but all commuters who come through our community.

Impact on Fox Studios & Century City

Commuters/business people coming from this area will take Motor to get through to the freeway; people in Cheviot will be impacted! Motor WILL be impacted.  All the side streets in Cheviot WILL be impacted.

If you live between Overland and Westwood, you will be sandwiched

Impact to businesses

During and after construction

People will avoid the Tavern and the Landmark and go to Culver City instead because they don’t want to deal with the hassle of the construction traffic.  They will find other options and businesses will lose customers.

The light rail will slow down the traffic as we have it today

Emergency vehicles will be heavily impacted and so will the community as a result

Gate malfunction: gates stay down for no reason.  Parents/kids will cross the gates to get to school.

Blue Line: 860 accidents, 99 deaths

Expo took Overland Avenue parents to the Gold Line; 2 hours later there was an accident in front of a high school

The human train

On Sepulveda, Overland, etc. – form the human train during peak traffic hours

Every single person who lives in this community should be donating

We were told by expo that this will NOT reduce traffic, but only provide another option for a mode of transit.

Pledge plan (payment plan) – how much a month you can donate to NFSR for a year

We cannot do it alone

Ask yourself: what is the cost of preventing an increase in cut through traffic on your street; what is the cost of being able to get out onto Westwood, Military, Sepulveda; what is the cost of getting a good nights sleep; what is the cost got the safety of our children.  It’s priceless.  We all need to dig deep.

Asking developers to help, because it will impact their projects, as well.

BUILD IT RIGHT OR NOT AT ALL.

Mike McIntyre– Yard Signs

Community support through yard signs

“Build it below or Expo must go”

Just say no until it’s below”

It ain’t over till it’s under”

Keep kids safe and sound, put the train underground”

Q&A

Q: What happens if they threaten to close Overland school due to impacts?

A: Will not happen.

Q: Regarding the signs, “below” what?  Make it more clear.

A: There are people who still don’t know what’s happening and that’s why we’re here.  That’s why we need people to walk down their blocks, go door to door and seek their help and donations.  We need people who will sign up to take up one block.  Keep doing the “coffees” – get people together.

Kim Christiansen - offer to post terminology for newcomers on the NFSR web site.

Mike Eveloff - inform people of these impacts: property value, school, getting to the 10 freeway, affect to fire fighters.  This is a real problem.

Q: Who are the people with the vested interest who are supporting the above ground.

A: They are allowed to have their opinion.

Q: Northvale 7 - Do you have a handout that we can give when we go door to door?  Call the elected officials.  They count the phone calls, they count for/against.  Ask for jay Greenstein.  Tell him you’re against the bike path.

A:  Handout has all elected officials contact info.

Q: What is the position of Fox studios?  Couldn’t we get help from them?

A: Agreed, we need to contact them.  We need business contacts.

Q: Has anything been discussed about how to safeguard all the bushes and eucalyptus along Northvale?  Has that been part of the EIR?

A: Until the final design, no one really knows.

Q: The train should serve people and do some good.  What is the pro side of having it go through here?  It seems like it’s going through a bunch of single- family homes, where no ones going to use it.

A: The Venice-Sepulveda route was put in there so that they could say they studied something else. It had the highest ridership because of the multi-family units in Palms.

Q: Can we get Tree People involved?

A: The helped plant the trees Westwood to Military but did not buy or maintain them.

Q: Are companies in Century City being approached?

A: We’re starting with our people and moving forward to let people know that this project will not just affect us.  We need contacts for businesses.  We’ve contacted Macerich & Westfield and they agree it should be grade separated.

Q: Impact to Fantasy Island.  Owner of Billingsley is oblivious about this.  Taking away parking.

A: Get the word out to businesses – they WILL be impacted.

Q: Signs are important because not everyone has e-mail/internet access.

A: That’s what the coffee’s are about, too.

Councilmember Koretz Says No, Expo Board Says Yes to Phase 2 FEIR

It was no surprise that the Expo Authority Board of Directors voted to certify the Phase 2 FEIR on February 4. What was surprising was the pre-publication of Supervisor Zev Yaroslavskys “yes” vote in a slick PR piece distributed by the Expo Authority’s newly hired public relations firm, Consensus, Inc. His position on the project was never in doubt, but out of respect for constituents, generally the Board members will at least hear public testimony before publicly announcing their vote.

     Also surprising, was the last minute decision of sitting Expo Board member Bernard Parks to renege on a promise made some weeks ago to allow City Councilmember and Expo Board Alternate Paul Koretz the opportunity to sit in on the vote to certify the Phase 2 FEIR, as it affects CD-5 and not Parks’ district.  Coucilmember Koretz was, instead, allowed to make a statement regarding the project. In the statement he identified many of the same FEIR faults pointed out by NFSR over the last three years (flaws in the Metro Grade Crossing Policy, Expo misapplied CEQA regulations evaluating crossings in WLA, and the failure to study grade separations).  In addition, Koretz made the bold statement that he would have voted no on the FEIR certification. Please read the Councilmember’s response in its entirety. Also read Supervisor Mark Ridley-Thomas’s letter to MTA Chief Art Leahy about the failures of the Metro Grade Crossing Policy to include safety and environmental considerations.

     Over 100 local community members carpooled or drove to the Expo board meeting to support the Neighbors For Smart Rail platform asking that the FEIR not be certified until its many deficiencies are remedied, including their failure to study and provide documentation for an underground alignment from Overland to Sepulveda.  Thanks to all who came and spoke to the Expo Board, or lent their support to those who did.  The importance of getting community input on the record cannot be overstated.  The politicians need to see a critical mass of people opposing this project as designed.  It is also vital to protest Expo’s sloppy environmental evaluation devised to mask impacts and overstate the benefits of running these trains at grade though our residential community as often as every 2 ½ minutes,  22 hours a day for the next 75 years.  It is necessary that Expo understand our community resolve for them to, “Build it right or don’t build it.”

     CEQA Attorney Robert Silverstein presented NFSR’s response to the FEIR along with a banker’s box of evidence documenting the FEIR’s CEQA failures.  Attorney Silverstein will be representing NFSR through the filing of a Writ of Mandate, and any subsequent trial.

     There were supporters of Expo’s plans present as well. Their support was for the line as proposed, with few if any comments from them on impacts other than the need to preserve the coral trees on Olympic and to relocate the maintenance yard to protect the quality of life in the Santa Monica neighborhood adjacent. The biggest chunk of the “go Expo” crew were the two busloads of students in aqua t-shirts from Santa Monica College, who stated for the record that they were there because they were given “extra credit” from the college for attending.  Three commercial real estate developers from Santa Monica, including one who claimed to represent several thousand hospitality workers in Santa Monica hotels, are also anxious to get the train up and running. Clearly development and commerce in Santa Monica depends on Expo speeding through the residential community of West Los Angeles ASAP.

     So, where do we go from here? NFSR held an Expo Light Rail community meeting on February 21, (details here) to discuss where we are and the next steps in our legal challenge, and most important, fund raising strategies and public relations. Read about it and how you can help!