Citizens Against Airport Pollution v. City of San Jose
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)
CITY OF SAN JOSE, a Municipal )
Corporation; CITY COUNCIL OF )
SAN JOSE; AIRPORT DEPARTMENT; )
and Does 10 to 15; )
Does 16 to 100; )
Real Parties in Interest. )
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
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.
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.
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.
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).
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.
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.
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
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.
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.
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
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.
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.
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.''
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.
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.
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
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.
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.
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
Petitioners incorporate all previous allegations as
if fully set forth.
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
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
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
Petitioners incorporate all previous allegations as
if fully set forth.
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:
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;
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;
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.
For costs of suit and attorneys fees pursuant to Code
of Civil Procedure S1021.5; and
For other and further relief as the court finds proper.
Dated: July 14, 1997
BRANDT-HAWLEY & ZOIA
Rose M. Zoia
Attorney for Petitioner