CAROL KORADE, State Bar No. 82133
DAVID BRANDT, State Bar No. 181435
Deputy City Attorney
City of Alameda
2263 Santa Clara Ave., Rm. 280
Alameda, CA 94501
Tel. (510) 748-4544
STEVEN F. PFLAUM, State Bar No. 90229
McDermott, Will & Emery
227 West Monroe
Chicago, IL 60606
Tel. (312) 372-2000
Attorneys for Petitioner and Plaintiff
CITY OF ALAMEDA
E. CLEMENT SHUTE, JR., State Bar No. 36542
ELLISON FOLK, State Bar No. 149232
HEATHER FRIEDMAN, State Bar No. 191180
SHUTE, MIHALY & WEINBERGER
396 Hayes Street
San Francisco, CA 94102
Tel. (415) 552-7272
Attorneys for Petitioner and Plaintiff
CITIZENS LEAGUE FOR AIRPORT
SAFETY AND SERENITY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
CITY OF ALAMEDA, a municipal corporation; ) Case No. 793056-0
CITIZENS LEAGUE FOR AIRPORT SAFETY AND )
SERENITY, a not for profit corporation, ) PETITION FOR WRIT OF MANDATE
Petitioners and Plaintiffs, ) (Airport Development Program)
vs. ) (C.C.P. Sec. 1085;
) Pub. Resources Code
PORT OF OAKLAND, BOARD OF PORT ) Sec. 21168.5)
COMMISSIONERS, and )
DOES I - XXV, inclusive, )
Respondents and Defendants. )
1. By this action, petitioners City of Alameda ("Alameda") and the Citizens League For Airport Safety and Serenity ("CLASS") challenge the approval by the Port of Oakland and Port of Oakland Board of Port Commissioners (hereinafter "respondents" or "Port") of the Airport Development Program ("ADP" or "Project") which authorizes a significant expansion of the Metropolitan Oakland International Airport ("Airport"). Petitioners also challenge respondents' certification of an environmental impact report ("EIR") concerning the ADP. Petitioners allege that these actions violate the California Environmental Quality Act (Public Resources Code s. 21000 et seq. ("CEQA"). Petitioners seek a determination from this Court that respondents' approval of the ADP is invalid and void and that the EIR prepared on the Project fails to satisfy the requirements of CEQA.
2. Respondents' actions would permit, contrary to CEQA, a $500 million dollar expansion of the Airport including the reconstruction of the Airport's existing two terminals with the addition of twelve new aircraft gates; a six-story 5,000-space parking garage; double-decking the access terminal roadway to provide second level access; the construction of 17 new aircraft parking positions and numerous air cargo projects. The ADP also includes a significant increase in air passenger and air cargo activity and a substantial modification in the Airport's operations.
3. Petitioner City of Alameda is a municipal corporation and a charter city organized and existing under and by virtue of the laws of the State of California and is located within Alameda County. Petitioner City of Alameda submitted written and oral statements to the Port objecting to and commenting on the ADP. Alameda is authorized by its City Council to bring this action.
4. Petitioner CLASS is a non-profit corporation created to represent the interests of residents of Alameda with regard to airport issues. CLASS has a particular interest in working to preserve and enhance the quality of life, health, safety, and the environment of homeowners and residents surrounding the Airport. CLASS submitted written and oral statements to the Port objecting to and commenting on the ADP. CLASS' Executive Committee has authorized the filing of this action on behalf of its members.
5. Petitioners Alameda and CLASS have a direct and beneficial interest in the Port's compliance with the requirements of CEQA and the CEQA Guidelines. That interest would be directly and adversely affected by the ADP in that the Project violates provisions of law as set forth in this Petition and would subject Alameda's residents and CLASS' members to significant and detrimental environmental impacts which will not be mitigated or avoided due to the violations of law set forth herein. Specifically, the approval of the ADP would: result in a significant increase in noise levels for Alameda residents including members of CLASS, which impacts have not been adequately identified, analyzed or mitigated; lead to a further deterioration of ambient air quality; expose Alameda residents to an increase in toxic air contaminants; increase traffic congestion in the region, lead to further deterioration and destruction of wetlands and wildlife habitats, impact threatened and endangered species, impact the Hayward Regional Shoreline and other parks, expose residents to a potential increase in aircraft hazards, further contaminate the waters of the San Francisco Bay, increase flooding potential, impact historic properties and result in inconsistencies with the City of Alameda's General Plan.
6. Respondent Port is a department of the City of Oakland and has the duty to defend its actions. The Port is the lead agency and project proponent and is responsible for implementing and complying with the provisions of CEQA and the CEQA Guidelines.
7. Petitioners do not know the true names, capacities, and interests, whether individual, corporate, associate or otherwise, of respondents DOE I through DOE XXV, inclusive, and therefore sue said parties under fictitious names. Petitioners will amend this petition to show their true names and capacities when the same have been ascertained. Petitioners are informed and believe and thereon allege that each of the DOES is the agent, employee, and/or beneficiary of each other party in this action.
STATEMENT OF FACTS
Description of the Airport
8. The Airport is located on approximately 2,445 acres in the southwestern portion of the City of Oakland in Alameda County. The Airport is bounded on the north by the community of Bay Farm Island in Alameda and on the east by the Cities of San Leandro and Oakland. To the south and west is the San Francisco Bay.
9. The Airport is divided into North Field and South Field. South Field contains the Airport's commercial air passenger facilities, its principal runway (Runway 11/29), and most of its air cargo facilities. North Field contains three runways (Runways 9L/27R, 9R/27L and 11/33), general aviation, aviation maintenance, and some air cargo facilities.
10. In 1995, approximately 9.8 million annual passengers used the Airport and the Airport handled approximately 600,000 tons of cargo.
The Airport Development Program and Its Environmental Impacts
11. The ADP would permit the expansion of the existing Airport including the reconstruction of the Airport's existing two terminals with the addition of twelve new aircraft gates; a six story 5,000 space parking garage; double-decking the access terminal roadway to provide second level access; the construction of 17 new aircraft parking positions and numerous air cargo projects. The ADP is expected to cost upwards of $500 million dollars.
12. In addition to the capital projects, the ADP also includes operational changes at the Airport including a substantial shift in commercial jet landings from the South Field Runway 29/11 to the North Field Runway 27L. By 2010, the Airport estimates that there will be approximately 48,000 commercial jet
aircraft landings (727s and 737s) at North Field annually, or over 130 landings per day. These jet landings would result in a shift of general aviation aircraft from Runway 9R/27L to Runway 33.
13. The Port is also proposing, as a component of the ADP, the construction of a major roadway through the center of the Airport (the Cross Airport Roadway). This four-lane road would extend from I-880 at 98th Avenue to the Airport and through the Airport to Bay Farm Island. It was included in a bond
measure passed by the voters in 1986. Alameda considers it a project separate from the ADP. Petitioners do not challenge the approval of this roadway. The propriety of the roadway will be determined by Alameda under
criteria established in its General Plan. Even assuming the Cross Airport Roadway as mitigation for the ADP, the traffic analysis in the EIR is inadequate and the mitigation measures for traffic impacts are insufficient to reduce the significant impacts.
14. Not included in the ADP, but also planned by the Port, is a 2,500 foot extension of Runway 11/29, a new air traffic control tower, and a high speed exit taxiway. These projects are closely related to the ADP.
15. The ADP would facilitate growth in aircraft operations. The ADP would cause a significant increase in passenger activity because it will make extensive improvements that will attract passengers by improving passenger conveniences and services. The Project is projected to result in an approximately 270 percent increase in air passenger activity by 2010 and a commensurate, if not greater, increase in air cargo aircraft operations.
16. The ADP would have a wide range of significant negative impacts on the environment in the region surrounding the Project site. Alameda, and in particular the community of Bay Farm Island which is part of Alameda is located immediately northwest of Runway 29/11. Approximately 90% of aircraft depart from Runway 29/11 in a northwesterly direction directly over or in close proximity to Bay Farm Island. The Project would result in a substantial increase in noise levels in Alameda. The Port's proposed operational changes would also impact Alameda, as up to 130 flights per day of commercial aircraft could land on a North Field runway. Currently, North Field runways are virtually unused by commercial aircraft. In addition to impacts from aircraft overflights, Alameda residents would experience increased noise and vibration impacts associated with jet aircraft back blast, aircraft turning around, and aircraft taxiing to the terminals. In addition, the increased number of general aviation operations departing from Runway 11/33 over Alameda's Fernside community would result in a substantial increase in noise impacts. Finally, the substantial increase in air cargo operations would particularly impact Alameda residents since many air cargo operations occur during nighttime and ofter use older and noisier aircraft.
17. Approximately 47,000 motor vehicles would access the Airport on a daily basis with up to 2,215 trips occurring in the a.m. peak hours, and up to 2,415 trips occurring in the p.m. peak hours. The vast majority of these trips would travel to and from the Airport on I-880, a main north-south artery through Alameda County. The ADP is expected to result in significant levels of traffic congestion in the vicinity of the Airport, including on I-880 and Alameda's roadways.
18. The Bay Area is designated as nonattainment with regard to the California Ambient Air Quality Standards for ozone, particulate matter and carbon monoxide. Implementation of the ADP would contribute up to an additional 45,300 pounds per day (lb/day) of carbon monoxide, up to 5,350 lb/day of reactive organic compounds (precursor to ozone), up to 12,700 lb/day of nitrogen oxides (precursor to ozone), and up to 3,920 lb/day of particulate matter to the air.
19. The ADP would contribute significant amounts of toxic air contaminants into the atmosphere from aircraft engines, motor vehicles and ground support equipment. Typically, a health risk assessment is used to evaluate potential impacts from toxic air contaminants, yet the Port failed to conduct such an assessment. A health risk assessment prepared by the Plumbers and Steamfitters Local Union No. 342 shows that there will be a significant increase in the risk of cancer and non-cancer health effects in residential areas near the Airport, including Alameda, due to the ADP.
20. Although the ADP would result in a substantial increase in aircraft activity over Alameda, the EIR does not identify or analyze air traffic safety impacts. The EIRs prepared for San Francisco International and San Jose Airports, prepared by the same consultant as the one who prepared the Port EIR, contain air traffic safety analyses including a discussion of the risk of explosion and the release of hazardous substances in the event of an accident.
21. The Airport is located on the edge of San Francisco Bay. Significant portions of the Airport are built on Bay fill. The Airport contains wetlands such as tidal salt marsh and lagoon, nontidal salt marsh and drainages, seasonal wetlands and pannes/mudflats that support a number of vegetation types and constitute habitat for wildlife species. Although the Project would result in the loss of over seven acres of wetlands, the EIR fails to identify feasible or effective mitigation to offset this significant impact. In fact, the Port proposes to replace lost wetlands with the creation of new wetlands which are not conducive to use by
22. The Airport site provides habitat for numerous special status species including the least tern, the stowy plover and the burrowing owl. Project construction would likely encroach into species' habitat and increased flight operations would likely result in additional bird strikes. The Port failed to adequately analyze the impact of the ADP on sensitive wildlife. Instead, the EIR simply describes the wildlife habitats on the Airport
site and briefly summarizes the results of a limited number of wildlife surveys that have been performed.
23. Other adverse environmental impacts associated with the ADP include the contamination of the waters of the San Francisco Bay, impacts to the Hayward Regional Shoreline and other parks, flooding and floodplain impacts, impacts relating to hazardous and solid wastes, impacts to historic properties and
inconsistencies with Alameda■s General Plan.
24. Because the ADP would result in significant environmental impacts, it is incumbent upon the Port under CEQA to consider a range of alternatives, including those which would reduce some or all of the significant impacts of the ADP. Yet the only "build" alternative retained for detailed study by the Port was the ADP project alternative. All other development alternatives were dismissed in the Draft EIR as unable to satisfy the purpose and need for the Project. In fact, because the Project has an artificially myopic time frame (2000), the EIR artificially narrows its range of alternatives claiming that other alternatives could not be brought on line within the ADP implementation period.
Administrative Process for the Airport Development Program
25. On April 15, 1992, the Port issued a Notice of Preparation ("NOP") of an EIR for the ADP. On December 29, 1992, the FAA issued a Notice of Intent ("NOI") to prepare an EIS. A scoping meeting for the Project was held on January 23, 1993.
26. Between 1992 and 1994, the project description was substantially changed. The Port issued a Supplemental NOP on November 11, 1994, and the FAA issued a Supplemental NOI in the Federal Register on December 16, 1994. The Port did not hold a scoping meeting on the revised project.
27. Following the release of the scoping documents, but before the release of the Draft EIR for the ADP, the Port approved myriad projects. Specifically, since 1992, the Port has authorized numerous projects that would add to the capacity of the Airport and would facilitate expanded aircraft activity. These projects include upgrading Runway 27L, the construction of a passenger corridor connecting Terminals I and II, the construction of a second jetway at the International Arrivals Building, the construction of the United Airlines Hangar Modification Project, and the construction of a parking lot. The Port did not include the effects of these projects in the EIR for the ADP, and thus, all of these projects have occurred without the benefit of
comprehensive environmental assessment.
28. On September 20, 1996, the Port and the FAA released a draft EIS/EIR (hereinafter referred to as "Draft EIR"). The 60-day review period was initially scheduled to end on November 21, 1996. On October 18, 1996, Alameda filed a request for public records. The Port ultimately produced the last of the necessary documents on December 23, 1996. As a result of the delay in producing the necessary documents, the Port extended the comment period to December 30, 1996.
29. Petitioners and numerous others commented on the Draft EIR, identifying numerous inadequacies of the document. Among other defects, the Draft EIR failed to accurately describe the proposed project, provided insufficient detail on project impacts, impermissibly deferred the analysis of significant effects until after project approval, failed to identify feasible mitigation measures and failed to adequately consider alternatives capable of mitigating the Project's significant impact. Specifically, the Draft EIR inadequately analyzed noise impacts because it relied on noise averages, rather than single event noise for determining significant impacts, it failed to identify the existing noise sensitivity of residents and did not identify the impacts from increased flights on factors such as communication interference, sleep interference, physiological responses
and annoyance. In addition, the Draft EIR did not provide an adequate analysis of air quality impacts and impacts relating to the increase in toxic air contaminants, traffic impacts, loss of wetlands, impacts to public safety resulting from the increase in aircraft activity, loss of sensitive wildlife habitats, impacts on endangered and threatened species, water quality impacts including the contamination of the San Francisco Bay, impacts to the Hayward Regional Shoreline, light and glare impacts, impacts to historic properties and impacts relating to the Project's inconsistency with Alameda's General Plan. Nor did the Draft EIR adequately examine the cumulative environmental impacts resulting from the approval of past, present and reasonably foreseeable future projects. In addition, the Draft EIR failed to contain a reasonable range of alternatives to the ADP. Petitioners and numerous others requested that the Port correct these deficiencies and recirculate a revised Draft EIR.
30. As part of petitioners' comments on the Draft EIR, petitioners requested that the Port consider the construction of an alternative runway ("Cross Wind Runway") that would be approximately perpendicular to Runway 29/11. Developed by an airport operations consultant, the runway could allow the
Airport to accommodate its forecast activity levels while minimizing noise impacts to neighboring communities. The Port rejected this alternative without any meaningful discussion of its merits.
31. Two public hearings were held on November 6, 1996, one in the morning and one in the evening. Petitioners and numerous others including the mayors of Alameda and San Leandro testified at these hearings expressing concern about the Port's failure to adequately document the environmental impacts associated with the ADP.
32. The Final EIR ("Final EIR"), including the responses to more than five hundred comment letters on the Draft EIR, was released by the Port on December 4, 1997. The Final EIR was not accompanied by a Final EIS. Although the ADP had been pending for several years, the Port provided only 14 days to review the Final EIR. The Draft EIR portion of the document had been substantially changed. Portions of topics had been deleted and much material had been added. The order in which subjects were discussed had been changed. The confused and misleading presentation of the Final EIR made it impossible for the public and decision makers to understand the environmental consequences of the ADP. Specifically, the Final EIR contained significant new information as well as substantial changes to the Draft EIR including a revised alternatives analysis and the acknowledgment that the ADP would result in the loss of additional acres of wetlands. The Final EIR did not include any of the mitigation measures raised by petitioners and others, and it did not provide for implementation
of the Cross Wind Runway.
33. Petitioners and numerous other organizations and individuals commented on the Final EIR requesting recirculation of the EIR due to the presence of significant new information contained in the Final EIR. In addition, petitioners stated that the Final EIR did not adequately respond to the comments on the Draft EIR in that the Final EIR often offered only conclusory statements unsupported by factual information. Thus, neither the Draft EIR nor the Final EIR adequately analyze the environmental impacts associated with the ADP.
34. On December 16, 1997, the Board of Port Commissioners held a public hearing on the ADP. The Board received extensive detailed comments from the public on the Project, both written and oral. The comments addressed both the procedural deficiencies in the Port's EIR process and the many substantive inadequacies in the EIR's analysis of project impacts. At the conclusion of the public hearing, the Board of Port Commissioners unanimously certified the EIR as adequate and approved the ADP.
35. The Port filed a Notice of Determination relating to the approval of the ADP with the Alameda County Clerk on December 17, 1997.
36. Petitioners have performed any and all conditions precedent to filing the instant actions and have exhausted any and all available administrative remedies to the extent required by law.
37. Notice of petitioners■ intention to file this lawsuit was sent to the Board of Port Commissioners on January 14, 1998. Proof of service of this notice is attached hereto as Exhibit A.
38. On January 15, 1998, petitioners sent a copy of this petition to the Attorney General of the State of California pursuant to section 21167.7 of the Public Resources Code. A copy of that letter is attached hereto as Exhibit B.
39. Petitioners have no plain, speedy or adequate remedy in the course of ordinary law unless the court grants the requested writ of mandate to require respondents to set aside the approval of the ADP and certification of the EIR. In the absence of such remedies, respondents' approvals will remain in effect in violation of state law.
40. Petitioners are informed and believe and on that basis allege that the Port intends to go ahead with planning, financing, and construction of various elements of the ADP during the pendency of this litigation. Petitioners do not have a plain, speedy, and adequate remedy in the ordinary course of law in that they will be irreparably harmed by the ensuing environmental damage caused by implementation of the ADP and by the respondents' violations of CEQA. Petitioners reserve the right to seek injunctive relief and to introduce evidence regarding the Port's ongoing implementation of the ADP during the course of this litigation in order to prevent the irreparable harm resulting from such implementation of the ADP.