Monday, August 5, 2013
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.
Posted by BlogAdmin at 2:15 PM