News

Judge sides with MP, Atherton over flaws in high-speed rail review; could delay project

Opponents of a plan to send high-speed trains shooting down the Peninsula's Caltrain corridor -- including the Menlo Park and Atherton city councils -- won a ruling in a lawsuit challenging the environmental study of the project.

Menlo Park resident Martin Engel said the decision returned today, Aug. 26, by a Sacramento County Superior Court judge found inadequacies in the environmental review. The judge's decision will require additional studies and the recirculation of the environmental document, Mr. Engel said.

The ruling could result in a significant delay -- and added costs -- to the project.

Judge Michael Kenny's decision will require the California High Speed Rail Authority to rescind its decision to run high-speed trains along the so-called Pacheco Pass route because the decision was based upon a flawed environmental impact report, said Stuart Flashman, the Oakland-based land-use attorney representing the plaintiffs. Project-level studies that are underway will have to stop, he said.

"They're back to the drawing board," Mr. Flashman said.

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Mike Scanlon, the CEO of Caltrain, had a very different take on the lawsuit. "Our attorneys characterized it as minor," he said at a High Speed Rail meeting in Menlo Park on Aug. 26. "The court didn't say anything about recirculating (the EIR)."

He contended that only two areas of concern were identified by the judge -- the impact of vibrations from the train, and a "somewhat flawed" definition of the rail corridor from San Jose to Gilroy.

Mr. Flashman said that Judge Kenny's ruling calls out four trouble spots. The most significant may be restrictions on the use of the Union Pacific Railroad's right-of-way, he said. The high-speed rail authority said the project would do without it, but there are places in the EIR that clearly rely on use of that right-of-way, Mr. Flashman said.

Vibrations from the train are potentially significant, Mr. Flashman said. "The authority said we can mitigate the vibrations, but that's not based on any information on the record. The court said that you had no business saying it could be mitigated."

The court also found that the description of the San Jose to Gilroy route was so vague that you couldn't tell where the project would be, so you couldn't determine what impacts it could have, Mr. Flashman said. The EIR also didn't adequately describe property impacts or land takings, he said.

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The lawsuit was spearheaded by environmental and rail nonprofit groups that were previous supporters of the high-speed train project, but have since become vocal critics of the rail authority's selection of the Pacheco Pass as the route to connect trains from the Central Valley to the Bay Area. Last year, the city councils of Atherton and Menlo Park voted to join in the lawsuit.

Under the Pacheco plan, high-speed trains would connect to Gilroy from the Central Valley and shoot up and down the Caltrain corridor to connect to San Francisco. That route would serve fewer riders, and be far more environmentally damaging than the Altamont Pass route, according to the group of environmental and rail nonprofits.

Under the Altamont plan, trains would continue north into the San Joaquin Valley before heading west and crossing a new bridge across the Bay to connect to the Caltrain line -- a route that could bypass Menlo Park and Atherton entirely.

The nonprofits behind the lawsuit include the Planning and Conservation League, the Transportation Solutions Defense and Education Fund, the California Rail Foundation (the educational arm of the Train Riders' Association of California) and the Bay Rail Alliance.

A separate lawsuit, over the use of the Union Pacific right-of-way, was recently filed by Menlo Park resident Russell Peterson.

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Judge sides with MP, Atherton over flaws in high-speed rail review; could delay project

by / Almanac

Uploaded: Wed, Aug 26, 2009, 4:55 pm
Updated: Wed, Aug 26, 2009, 5:24 pm

Opponents of a plan to send high-speed trains shooting down the Peninsula's Caltrain corridor -- including the Menlo Park and Atherton city councils -- won a ruling in a lawsuit challenging the environmental study of the project.

Menlo Park resident Martin Engel said the decision returned today, Aug. 26, by a Sacramento County Superior Court judge found inadequacies in the environmental review. The judge's decision will require additional studies and the recirculation of the environmental document, Mr. Engel said.

The ruling could result in a significant delay -- and added costs -- to the project.

Judge Michael Kenny's decision will require the California High Speed Rail Authority to rescind its decision to run high-speed trains along the so-called Pacheco Pass route because the decision was based upon a flawed environmental impact report, said Stuart Flashman, the Oakland-based land-use attorney representing the plaintiffs. Project-level studies that are underway will have to stop, he said.

"They're back to the drawing board," Mr. Flashman said.

Mike Scanlon, the CEO of Caltrain, had a very different take on the lawsuit. "Our attorneys characterized it as minor," he said at a High Speed Rail meeting in Menlo Park on Aug. 26. "The court didn't say anything about recirculating (the EIR)."

He contended that only two areas of concern were identified by the judge -- the impact of vibrations from the train, and a "somewhat flawed" definition of the rail corridor from San Jose to Gilroy.

Mr. Flashman said that Judge Kenny's ruling calls out four trouble spots. The most significant may be restrictions on the use of the Union Pacific Railroad's right-of-way, he said. The high-speed rail authority said the project would do without it, but there are places in the EIR that clearly rely on use of that right-of-way, Mr. Flashman said.

Vibrations from the train are potentially significant, Mr. Flashman said. "The authority said we can mitigate the vibrations, but that's not based on any information on the record. The court said that you had no business saying it could be mitigated."

The court also found that the description of the San Jose to Gilroy route was so vague that you couldn't tell where the project would be, so you couldn't determine what impacts it could have, Mr. Flashman said. The EIR also didn't adequately describe property impacts or land takings, he said.

The lawsuit was spearheaded by environmental and rail nonprofit groups that were previous supporters of the high-speed train project, but have since become vocal critics of the rail authority's selection of the Pacheco Pass as the route to connect trains from the Central Valley to the Bay Area. Last year, the city councils of Atherton and Menlo Park voted to join in the lawsuit.

Under the Pacheco plan, high-speed trains would connect to Gilroy from the Central Valley and shoot up and down the Caltrain corridor to connect to San Francisco. That route would serve fewer riders, and be far more environmentally damaging than the Altamont Pass route, according to the group of environmental and rail nonprofits.

Under the Altamont plan, trains would continue north into the San Joaquin Valley before heading west and crossing a new bridge across the Bay to connect to the Caltrain line -- a route that could bypass Menlo Park and Atherton entirely.

The nonprofits behind the lawsuit include the Planning and Conservation League, the Transportation Solutions Defense and Education Fund, the California Rail Foundation (the educational arm of the Train Riders' Association of California) and the Bay Rail Alliance.

A separate lawsuit, over the use of the Union Pacific right-of-way, was recently filed by Menlo Park resident Russell Peterson.

View text of judge's ruling (PDF).

Archive story: Menlo Park, Atherton join rail suit

Comments

Hank Lawrence
Menlo Park: Sharon Heights
on Aug 27, 2009 at 7:47 am
Hank Lawrence, Menlo Park: Sharon Heights
on Aug 27, 2009 at 7:47 am

The legislature should propose a bill to the Governor that would delay the HSR project until the budget is balanced and the deficit is wiped out. Today California has the dubious distinction of being rated 50 out of 50 States in Bond ratings. This means that Californians will pay the highest interest for bonds and bonds are used to fund HSR.

I would like to drive a Bentley Continental. But I don't because I can't afford it [portion removed]. If constituents have to live within their means so should the State of California.


Morris Brown
Menlo Park: Park Forest
on Aug 27, 2009 at 8:55 am
Morris Brown, Menlo Park: Park Forest
on Aug 27, 2009 at 8:55 am

The suggestion from Hank Lawrence above makes a lot of sense (imagine Morris Brown saying Hank Lawrence is making sense --- what is this world coming to).

However, this is simply not reality. Last summer Senator Roy Ashburn tried in vein to get AB-3034 delayed in the State Senate -- fiscal problems were among the strongest arguments. His efforts went nowhere. Ironically, Ashburn was the key vote needed to get HSR started back about 10 years ago --- without his vote, there would be no High Speed Rail Authority.

The Judge's ruling has serious implications for the project The key point here is that the Authority planned the route to LA using the Pacheco pass, but to get there they needed to use the Union Pacific (UP) right-of-way from San Jose to Gilroy. The Authority never made any kind of agreement with the UP to use this corridor. They still haven't any agreement to use this corridor. Yet the Authority certified an EIR that used this corridor to get to Gilroy. CEQA simply doesn't allow this kind of non-sense.

At the very least an amended EIR must be prepared and it must study a corridor that the Authority can use. Yes, this will nean delays at the very least. It might also mean that a re-consideration about using the Altamont pass (a much better routing for everyone except San Jose), could be in the works.

In the meantime, all further EIR work on the project level EIR for the Bay area should stop. Right now there is no certified route to get from the central valley to the Bay area.

Morris Brown
MP


menlomom
Menlo Park: Menlo Oaks
on Aug 27, 2009 at 1:05 pm
menlomom, Menlo Park: Menlo Oaks
on Aug 27, 2009 at 1:05 pm

The folks who are concerned and involved in this decision should read the excellent editorial in The Washington Post by Samuelson that is circulating around town. If you're interested, you can read it online on the newspaper website. In this economic climate we all need to understand reality and not believe in misguided ideals that aren't fact-based.


a neighbor
Menlo Park: Park Forest
on Aug 27, 2009 at 2:55 pm
a neighbor, Menlo Park: Park Forest
on Aug 27, 2009 at 2:55 pm

Grave concern as to competence when Congresswoman Eshoo forgets she signed a letter approving Pacheco Pass. It is sad! She should resign now before doing any more damage.



ear to the rail
Menlo Park: Linfield Oaks
on Aug 27, 2009 at 3:03 pm
ear to the rail, Menlo Park: Linfield Oaks
on Aug 27, 2009 at 3:03 pm

The question of the use of UP rails for HSR between San Jose to Gilroy was discussed in public at a Joint Powers Board Meeting years ago. It was stated that, if necessary hsr would build its own tracks.


Robert Cruickshank
another community
on Aug 27, 2009 at 3:13 pm
Robert Cruickshank, another community
on Aug 27, 2009 at 3:13 pm

Did the Almanac reporter actually read the decision? It is available on my California High Speed Rail Blog; it's not a particularly difficult document to read and understand.

Morris Brown/Martin Engel and I will probably never agree on the actual meaning of the decision. But you'd think a reporter would actually base an article on the decision itself, and not on a he said/she said approach where two partisans try and spin the decision's meaning.


R.GORDON
another community
on Aug 27, 2009 at 6:47 pm
R.GORDON, another community
on Aug 27, 2009 at 6:47 pm

VIBRATIONS?
Pacheco Pass?
Gilroy?
What about the rest of the communities who get a lateral pass to carry the ball for the monster rich cities when we KNOW Atherton, Menlo Park, Woodside sit by quietly without a peep to complain so that BIG MONEY doesn't appear to be buying off courts whereas you couldn't shut them up when it came to saving an ugly eyesore of a house? They DID manage to get a half billion dollar grant to move and develop the TESLA which will never be sold to one average grand child when it is already outmoded?
As the debate of this century continues as to whether to make CA the


R.GORDON
another community
on Aug 27, 2009 at 7:09 pm
R.GORDON, another community
on Aug 27, 2009 at 7:09 pm

(cont)HSR capital of the U.S. or, try to prevent its happening when it is the only thing Schwarzenneger and Washington know is the only way to BEGIN spreading from the West Coast and increase employment. That half billion to TESLA happened WAY to fast without any objections only because when we ask for 50 billion to begin work on the HSR, will have something to compare to the RIGHT....
FACT:China is raising its spending on railway construction in 2009 to 87.9 billion as part of a stimulus plan to boost domestic demand and adding 3200 miles of new lines which could be completed in 2009 and 5 high speed passenger lines will be in operation by 2010!
Have any of you been there to see the progress..the aformentioned fact that China is the world's number ONE car manufacturer?This Sunday announced it is bypassing the US already in Solar use? During this year,California jumped to 49 in "business friendliness" according to Samuelson in that Washington Post article? I suggest all of you read it if you haven't and realize China is going to hand over jobs to Americans who are already investing and making money.It is quite likely that it is one of those Silicon Valley types who like to keep the rich from having to hear those noises, vibrations, and make a lot more--but not as much as before--money. Do you really think those tycoons (small scale by world standards) give a rat's derrriere about you or me?....or the rest of the country which has to begin using its smarts because China already has plans on how to feed its people and will not be buying from us in 5 years.That is just ONE country, but the world leader, and soon be followed by India and the most populated countries who we thought of when we wanted to go someplace exotic for a vacation? Finally, there is Russia and to the complacent lot of you here thinking you have beat the HSR


R.GORDON
another community
on Aug 27, 2009 at 7:18 pm
R.GORDON, another community
on Aug 27, 2009 at 7:18 pm

from ruining your neighborhoods and have your houses torn down by Eminent domain, I think you best begin by reading the WORLD'S growth and economy and the rate they are moving.
The fellow who started MacAfee and had about $100,000,000 in his pocket a few years ago, and now is down to four if he can sell his house, is what those "philanthropists and venture capitalists" have been reduced to income wise.
A LOT of them are pretty broke by comparison, and are not able to make a daring move because they are now of an age where they may have to depend on spoiled kids who thought they were going to take over papa's business.......
HSR HAS TO START NOW!


fumbleitis
Menlo Park: other
on Aug 27, 2009 at 8:19 pm
fumbleitis, Menlo Park: other
on Aug 27, 2009 at 8:19 pm

Lost in this "diss"cussion is the Judge's dismissal of Menlo Park's brief as moot because some Menlo Park administrator didn't date/time stamp the city's EIR comment letter bearing the City Mgr.'s signature. Or was that the previous "interim" city mgr? Or, was it even sent? With the serious implications for Menlo Park residents/businesses along the proposed HSR corridor, the council needs to be confronted soon as to why Menlo Park's case was thrown out of court because "somebody in authority dropped the ball!"
That somebody should be forced to resign immediately for betraying the public trust.


truth
Menlo Park: Belle Haven
on Aug 28, 2009 at 7:39 am
truth, Menlo Park: Belle Haven
on Aug 28, 2009 at 7:39 am

This council was one of the first two in the state to actually challenge the CHSRA. Look at all the BS thrown around y Cruikshank and his train zealots, the Dems, the Governor, all the big political machinery angry at little old Menlo Park.

I still think rail is coming because these guys don't care about communities, only cities, but I am happy my council at least stood up.

I am not sure what you mean by confront, but it sounds odd.

Mr. Gordon, your posts are unclear. I mean no affront, but I cannot understand exactly what you are saying with regard to MacAfee...


R.GORDON
another community
on Aug 28, 2009 at 1:30 pm
R.GORDON, another community
on Aug 28, 2009 at 1:30 pm

Basically, any of you in the not so rich category as he was, $100 million means quite a bit to the average.

Unless you fall into a forever yielding money group or have Rockefeller or Astor fortunes, a lot of you who do not pay attention to the changes in our country will be leaving your children and grand children a lot less from your fortunes. The difference between those families and the super rich today, most all of those families spent their time seeing their money was spent to enrich the country and its citizens and did not fear the shrill noise of train whistles.

So, all of you venture capitalists and philathropists throw crumbs to your own with baseball parks, swimming pools, and gyms but ignore what the country has become.

The Barbara Bush attitude towards the people of California and HSR and unemployment is pervasive and it can all be traced to a very small area where all of those who think like BB feel protected by proximity and none of you choose to get involved in what does not affect you, without realizing that it will end up being your loss to not become involved.


my view
Menlo Park: Park Forest
on Aug 29, 2009 at 11:56 pm
my view, Menlo Park: Park Forest
on Aug 29, 2009 at 11:56 pm

Menlo Park's objections to the EIR were thrown out by the Judge. But not for not having a date stamp. No No No.

They were thrown out, because they were never sent. The City conducted a search and was unable to confirm that 9 letters and also e-mail with the comments were ever sent. This all happened on the present City Manager's watch. The results of the investigation have been covered up.

If Menlo Park's comments had be sent as planned, more points in the lawsuit might have been won. Nevertheless, the ruling is a major victory for the Cities along the Peninsula.


Zack
Menlo Park: Linfield Oaks
on Aug 31, 2009 at 2:50 pm
Zack, Menlo Park: Linfield Oaks
on Aug 31, 2009 at 2:50 pm

Palo Alto's friend of the court (amicus) brief was also thrown out by the judge, apparently because it was off topic and dealt with points that weren't included in the lawsuit. And of course, Palo Alto passed a resolution in favor of Prop 1A and then went back on it.
It looks like only Atherton's staff was on the ball enough to weigh in on this lawsuit/EIR.
I'd say Menlo Park and Palo Alto's handling of this is pretty embarrassing.


truth
Menlo Park: Belle Haven
on Aug 31, 2009 at 3:54 pm
truth, Menlo Park: Belle Haven
on Aug 31, 2009 at 3:54 pm

This suit doesn't have legs without Menlo Park jumping in. Sorry to bring reality here, but the fact that this council voted to get into this made this suit more than a small town and a few environmental groups. Menlo Park brought weight.

Not sure about the filing or whatever, but I think Atherton and Menlo Park had pretty similar papers?

I can't find any document that says Palo Alto was off topic. Can you point me to that judge comment?


Zack
Menlo Park: Linfield Oaks
on Aug 31, 2009 at 4:21 pm
Zack, Menlo Park: Linfield Oaks
on Aug 31, 2009 at 4:21 pm

It's in the body of the judge's decision, which is posted online. Page 20 for Menlo Park's comments not being incorporated and page 21 for Palo Alto's amicus brief.
Web Link


fumbleitis
Menlo Park: other
on Aug 31, 2009 at 7:57 pm
fumbleitis, Menlo Park: other
on Aug 31, 2009 at 7:57 pm

Menlo Park was laughed out of court for not meeting filing deadlines, just like it's council and staff are the laughing stock of the area.


R.GORDON
another community
on Aug 31, 2009 at 10:30 pm
R.GORDON, another community
on Aug 31, 2009 at 10:30 pm

Question:

Do you believe the judge is not being coerced to go the way of the people who object the HSR being brought to California, even if it does not come within a decent distance of their homes? I hope you know that bullet trains are next to silent.

In case you eventually do lose your objections, do you realize you will be one of the first of rich communities who will have to give up their homes by Eminent Domain and may be forced to move?


what?
Menlo Park: Allied Arts/Stanford Park
on Aug 31, 2009 at 11:40 pm
what?, Menlo Park: Allied Arts/Stanford Park
on Aug 31, 2009 at 11:40 pm

The old, rich, crony residents are the laughing stock. Trust me.


IS IT POSSIBLE
Woodside: other
on Sep 1, 2009 at 2:52 pm
IS IT POSSIBLE, Woodside: other
on Sep 1, 2009 at 2:52 pm



UNDUE INFLUENCE?........IS IT POSSIBLE


priorities
Menlo Park: Allied Arts/Stanford Park
on Sep 2, 2009 at 9:09 am
priorities, Menlo Park: Allied Arts/Stanford Park
on Sep 2, 2009 at 9:09 am

When we think of the longer term future of this region, this state, and this country, we should consider the inherent tradeoff being made to support this rather than the California higher educational system. An educated public is the key to productivity, a healthy economy, and national security.
There simply isn't enough money for the foreseeable future to support this and to do what's right for the UC and CSU systems. Let's get the priorities straight!


R.GORDON
Registered user
another community
on Sep 7, 2009 at 1:51 pm
R.GORDON, another community
Registered user
on Sep 7, 2009 at 1:51 pm

"priorities"
WHERE did we get the last 3 trillion?
We borrow from China and India and we have all this land for them to take over......silly.

I liked it better when NOBODY could get to sleep worrying and then something got done. Now, everyone just sleeps and hopes the Health Care system is almost taken care of......WHAT A GREAT COUNTRY!


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