Susan Brandt-Hawley  SBN 075907
Rose M. Zoia  SBN 134759 
Brandt-Hawley & Zoia
Chauvet House * Post Office Box 1659
Glen Ellen, California 95442 
(707) 938-3908 * (707) 576-0198 

Attorneys for Petitioners 


                   SUPERIOR COURT OF THE STATE OF CALIFORNIA

                      IN AND FOR THE COUNTY OF SANTA CLARA



CITIZENS AGAINST AIRPORT            )   Case No. 
POLLUTION an Unincorporated         )
Association; Leo RUBIO;             )   PETITION FOR WRIT OF MANDATE
REFUGIO MORENO; and Does 1 to 10;   )
                                    )   (CCP ss. 1094.5 and 1085)
Petitioners;                        )
                                    )
               v.                   )
                                    )
CITY OF SAN JOSE, a Municipal       )
Corporation; CITY COUNCIL OF        )
SAN JOSE; AIRPORT DEPARTMENT;       )
and Does 10 to 15;                  )
                                    )
Respondents;                        )
                                    )
Does 16 to 100;                     )
                                    )
Real Parties in Interest.           )
____________________________________)

Petitioners allege:

1. Petitioner Citizens Against Airport Pollution and individual area residents bring this mandate action in the public interest challenging the decision of the City of San Jose to approve the San Jose International Airport Master Plan Update. The environmental studies for the new Plan concede that its implementation will allow airport expansion far beyond the capacity of area highways to accommodate the increased airport passenger loads. A feasible alternative which will limit airport expansion to a size which fits current and planned area infrastructure should be adopted under mandatory provisions of the California Environmental Quality Act (CEQA).

The petitioners challenge the city's compliance with CEQA, including its improper reliance upon other agencies to solve the problems generated by its planned airport expansion, and its failure to study and coordinate a regional solution to long-term air transportation needs. The city's failure to follow and enforce its own Airport Noise Control program and its failure to address and mitigate measurably disparate airport impacts on the Guadalupe Washington Neighborhood are also challenged. The peremptory writ should issue in the first instance.

II. JURISDICTION AND VENUE

2. This court has jurisdiction under SS 21168 and 21168.5 of the California Environmental Quality Act (CEQA) and SS 1094.5 and 1085 of the California Code of Civil Procedure. The parties and the San Jose International Airport are located in Santa Clara County.

   III. PARTIES

3. Petitioner Citizens Against Airport Pollution (CAAP) is an Unincorporated association and coalition of neighborhood groups and organizations consisting of residents and property owners residing in the county of Santa Clara, in and around the city of San Jose. The membership of CAAP is composed of persons whose economic, personal, safety, and aesthetic interests will be severely injured by the implementation of the San Jose International Airport Master Plan Update (Airport Plan). CAAP brings this petition on behalf of all others similarly situated who are too numerous to be named and brought before this court as petitioners.

4. Co-Petitioners Leo Rubio and Refugio Moreno are residents of San Jose who live in the Guadalupe Washington Neighborhood in the vicinity of the airport whose personal, aesthetic, and property interests will be injured if the Airport plan is implemented. The airport noise impacts on the Guadalupe. Washington Neighborhood and Washington Elementary School currently interfere with area children's education and sleep. Petitioners intend to amend this petition to assert a cause of action for civil rights violations because the predominantly Hispanic neighborhood suffers and will suffer measurable disparate impacts from the airport's current operations and planned expansion under the Plan. Petitioners Rubio and Moreno participated in the Airport Plan administrative process before the city and exhausted administrative remedies, and bring this petition on behalf of all others similarly situated who are too numerous to be named and brought before this court as petitioners.

5. Respondent City of San Jose is a municipal corporation in the County of Santa Clara which owns the San Jose International Airport and operates the airport through the respondent Airport Department. Respondent City Council is the city's duly elected governing body which approved the Airport Plan and certified its environmental impact report (EIR).

6. The implementation of the Airport Plan will affect numerous area residents, travelers, domestic and international airlines, vendors, and others, however, none are indispensable parties to this litigation. If any parties request participation in this litigation, leave to amend this action to assert their names may be requested.

7. Petitioners, respondents, and real parties in Interest Does 1 through 100 are sued under fictitious names. Their true names and capacities are unknown to petitioners. If and when true names and capacities are ascertained, petitioners will amend this petition to assert them.

8. The paragraphs below will refer to information in numerous documents relating to this lawsuit, all of which will be filed with this court as part of the record of proceedings before the city. Such documents are incorporated by reference.

   IV. GENERAL ALLEGATIONS

9. In 1984, the city adopted by resolution the Airport Noise Control program as a formal airport rule and regulation. Pursuant to San Jose Municipal Code S 15.04.030, all persons are governed by the airport rules and regulations and by the orders and instructions issued by the city relative to the use or occupancy of the airport.

10. The City of San Jose Airport Noise Control Program identifies hours during which certain aircraft operations may occurs. The Noise Control program prohibits the scheduling and operation of certain jet and non-jet aircraft between 2330 and 0630 hours (11:30 p.m. to 6:90 a.m.). The only exception to this prohibition is for bone fide emergency situations such as weather or equipment delays, mechanical reasons, air traffic control delays, or for the preservation of life or property. The Noise Control Program benefits area residents subjected to extreme airport noise.

11. Despite the existence of the Airport Noise Control Program, numerous airport operations in violation of the Program have occurred and continue to occur on a regular basis, affecting the members of CAAP and other area residents, including petitioners Rubio and Moreno and the residents of the Guadalupe Washington Neighborhood. The city routinely fails and refuses to enforce its Airport Noise control program over the objections of petitioners and other area residents impacted by significant and late-night airport noise.

12. In 1980, an Airport Master Plan was adopted for the airport, and an update was initiated in 1988. Due to extraordinary interest in the development of the airport and increasing concerns from citizens on airport noise, the city conducted a study session on airport noise and development issues in 1991. Development of alternative plans for airport development proceeded, and updated facility descriptions for environmental analysis was completed in 1995. A Notice of Intent for Preparation of an ElR was issued in 1995.

13. On October 31, 1996, the city published the Draft EIR for the Airport Plan. A 45-day comment period closed on December 16, 1996. The Draft EIR noted that key project objectives were ``to accommodate, to the extent reasonable and feasible, current and future demand for commercial air services: and to ``balance future development with the mitigation of adverse aircraft noise and other environmental impacts.'' The Draft EIR concluded that the airport expansion envisioned in the Airport Plan would have significant unmitigable impacts on traffic, air quality, and noise.

14. Numerous groups, individuals, and agencies commented on the Draft EIR, including state agencies, local and regional agencies, organizations, and more than eighty individuals. The response to comments questioning the enforceability of the Airport Noise control Program was that "all aircraft operators flying to and from [the airport] are required to comply with the Airport Noise Control Program." However, there are no enforcement mechanisms, penalties, nor fines in the 1984 Resolution regarding the Noise Control Program. Expansion of the program to new runway 12L-30R is presumed in the ElR with the conclusory statement that "the city has no reason to believe that the FAA would not concur with this measure.''

15. On April 23 and 30, 1997, the Planning Commission held public hearings on the EIR and the Airport Plan, and certified the EIR on April 30. Four appeals to the ElR certification were filed, by petitioner CAAP and by Robert H. Harmssen, Lenora Porcella, and Kenneth Hayes, all members of CAAP, primarily focusing on issues of noise control, traffic, air quality, and historic resources.

16. The appeals included, among other things, comments that the existing Noise Control Program is not being enforced and cannot be selectively enforced, and is an inappropriate underlying assumption of the EIR noise analysis. The staff response included admissions that the Noise Control Program was not being followed, and referenced 179 non-compliant operations over a five year period and numerous engine runups during curfew.

17. The appeals also included a comment that the Airport Plan will result in freeway gridlock, to which the response was that the freeways will be at level of service "``F'' (lowest category) even without increased airport operations, and that the increase in airport capacity will significantly increase the traffic problem. Criteria air pollutants generated by airport activity, vastly increased above the background, were judged to be significant and unmitigable. The Bay Area is a non-attainment area for ozone and particulates under state standards. Neither the Bay Area Air Quality Management District nor the state Air Resources Board has control over aircraft emissions.

18. Despite the unmitigable project impacts, the appeals to the City Council were denied on June 3, wherein the Airport plan was approved and the EIR certification affirmed.

19. The Notice of Determination was filed on June 13, 1997. Since the 30-day CEQA statute of limitations runs on July 13, 1997, a Sunday, this action is timely filed on Monday, July 14.

20. The petitioners have no adequate remedy in the ordinary course of law. If the Airport Plan remains approved, it will be implemented with immediate, severe, and irreparable harm to petitioners and San Jose residents due to its unsolved environmental problems. The city has the capacity to correct its violations of law but has failed and refused to do so.

    V. VIOLATIONS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

21. Petitioners incorporate all previous allegations as if fully set forth.

22. The City of San Jose abused its discretion and failed to act in the manner required by law in approving the Airport Plan and mitigation measures, certifying the EIR, taking actions necessary to implement the Plan, and making findings Under the California Environmental Quality Act because, inter alia:

    a. The EIR is inadequate because, among other issues raised in the record of proceedings, it relies upon unproven assumptions relating to noise impacts, including the phase out of Stage Two aircraft and the enforceability of the city's Noise Control Program and proposed amendments; it fails to adequately identify and mitigate impacts to historic resources, including the Hensley Historic District listed on the National Register of Historic Places; it fails to adequately study and recommend an alternative which will mitigate traffic, air pollution, and noise impacts to an acceptable level, including consideration of the use of Moffett airfield or relocating the airport to south Santa Clara County; it unlawfully segments analysis of regional transportation planning; it fails to adequately assess the environmental setting as to historic resources; it fails to adequately assess the natural environmental setting and impacts to endangered, threatened species, including the Chinook Salmon and Steelhead Trout in the Guadalupe River, which would be severely impacted by stream alteration, airport construction, soil disruption, and chemical spills; the parking, traffic, and plane loading analyses are based on inaccurate passenger demand forecast methodology; it fails to analyze or compose effective noise mitigation for residences experiencing significant noise, including historic properties; and it improperly defers solutions to Plan environmental impacts to state agencies.

    b. The Airport plan implements expansion of the airport resulting in significant unavoidable environmental impacts to regional and city noise, traffic, and air pollution, and the findings of the city that it has adopted all feasible mitigations measures is not supported by substantial evidence.

    c. The city failed to adopt a feasible alternative to the Airport plan to allow the airport operations to be conducted within the current and future capacities of regional transportation infrastructure.

    d. The city failed to adopt feasible mitigation measures to mitigate impacts to the Guadalupe Washington Neighborhood and Washington Elementary School.

    e. The city's findings are not supported by substantial evidence in light of the whole record.

    VI. VIOLATION OF CITY RESOLUTIONS, CODES AND ORDINANCES

23. Petitioners incorporate all previous allegations as if fully set forth.

24. The City of San Jose Airport Noise control Program specifies airline operations requirements and restrictions to reduce airport noise-related impacts on area residents. The city has a mandatory duty to enforce the Noise Control Program. As alleged above, the city has failed and continues to fail and refuse to enforce its Noise Control Program, resulting in ongoing significant noise impacts on area residents.

WHEREFORE, Petitioners pray:

1. That the court issue an Alternate and Peremptory Writ of Mandate, ordering respondent City of San Jose to set aside and void approvals of the San Jose International Airport Master Plan Update including any actions in furtherance or implementation of the Plan, until full compliance with city resolutions and ordinances, CEQA, and the public Resources Code is achieved, including certification of an Environmental Impact Report which fully analyzes project impacts and alternatives;

2. That the court issue a temporary restraining order and Preliminary injunction enjoining the city and its agents from any physical acts in implementation of the Plan while this petition for writ of mandate is pending;

3. That the court issue an Alternative and Peremptory Writ of mandate ordering the city to perform its mandatory duty to uniformly enforce its Airport Noise Control Program to protect

   area residents from excessive airport noise impacts.

4. For costs of suit and attorneys fees pursuant to Code of Civil Procedure S1021.5; and

5. For other and further relief as the court finds proper.