In a ruling that Menlo Park Councilman Rich Cline called "kind of a stomach punch," a California Superior Court judge has denied a motion to include a comment letter from the city as part of the administrative record in a lawsuit against the agency overseeing the high-speed rail project.
In the letter, which Menlo Park officials maintain they sent via mail and fax in September 2007, the city asks the High-Speed Rail Authority to thoroughly consider alternatives to running trains up the Caltrain corridor. It also asks the agency to consider the potential impacts of constructing the rail system on the Peninsula.
When the rail authority decided in May 2008 to run the trains along the Caltrain corridor, it had not responded to Menlo Park's letter.
In August 2008, Menlo Park and Atherton joined a lawsuit against the rail authority. One of Menlo Park's arguments in joining the suit was that rail officials had not responded to their letter. Under law, the agency is required to respond to every letter it receives.
But in the March 27 ruling, Judge Michael Kenny said the city did not adequately prove that it had in fact sent the letter, and that it didn't do enough to make sure it had been received. Furthermore, after the release of the final environmental document but before it was certified, there was a 40-day window in which Menlo Park could have resent its letter, the judge said. The city apparently did not do so.
During the City Council's March 31 meeting, City Manager Glen Rojas said the plaintiffs' attorney did not think the exclusion of the city's letter would have much effect on the case, because similar arguments had been made by others, including the town of Atherton.
Asked whether the city should rethink its process in submitting comment letters, Assistant City Manager Starla Jerome-Robinson said: "Given our experience, I'm sure we would call and make sure they got the letter in the future."
Ms. Jerome-Robinson did not work for the city at the time it sent the letter, and could not comment on the specific process. Mr. Rojas is on vacation; calls to Public Works Director Kent Steffens were not immediately returned.
The period for Peninsula cities and residents to comment on the possible impacts of high-speed rail closes April 6. Comments can be submitted via e-mail to email@example.com, with the subject line "San Francisco to San Jose HST." They can also be mailed to: Dan Leavitt, Deputy Director, ATTN: San Francisco to San Jose HST Project, EIR/EIS, California High-Speed Rail Authority, 925 L St., Suite 1425, Sacramento, CA 95814
Reconsider the lawsuit?
On Feb. 19, the rail authority responded to Menlo Park's letter, having requested and received a copy of it from the city's attorneys. At each of the City Council's last three meetings, Councilman John Boyle has asked whether the city should consider dropping the lawsuit, in light of the rail authority's response.
Councilman Rich Cline and Councilwoman Kelly Fergusson, who make up a council subcommittee tasked with dealing with high-speed rail issues, have not yet recommended that the council reconsider its decision to sue. Both said they were open to having the discussion, though Mr. Cline said it would take some convincing to get him to change his mind.
"I'm not even close to talking about getting out of this lawsuit," he said.
Mayor Heyward Robinson said he did not want to reconsider the issue.
Back in August, Mr. Cline and Ms. Fergusson voted in closed session to join the lawsuit, with Mr. Boyle opposed. Mr. Robinson was absent, and Councilman Andy Cohen is recused from high-speed rail issues.