Steven R. Meyers, City Attorney, SBN: 57800
Rick W. Jarvis, SBN: 154479
Liane M. Randolph, SBN: 166724
MEYERS, NAVE, RIBACK, SILVER & WILSON
777 Davis Street, Suite 300
San Leandro, California 94577
Attorneys for Petitioners and Plaintiffs
City of San Leandro, San Leandro Unified
School District, and San Lorenzo Unified
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
City of San Leandro, San Leandro Unified ) Case No. 793033-9
School District and San Lorenzo Unified )
School District, ) PETITION FOR WRIT OF
Petitioners and Plaintiffs, ) COMPOLAINT FOR INJUNCTIVE
) Trial Date: Not Yet Assigned
Port Department of Oakland Acting by and )
through the Oakland Board of Port )
Commissioners and DOES 1 through 20, )
Respondents and Defendants. )
Petitioners and Plaintiffs City of San Leandro, San Leandro Unified School District and San Lorenzo Unified School District (hereinafter "Petitioners") allege as follows:
1. This Petition challenges the decision of the Port Department of Oakland (hereinafter "Respondent" or "Port") on December 16, 1997, to certify an environmental impact report, and to approve an extensive new development plan at the Oakland International Airport ("Airport") known as the Airport Development Program (hereinafter "ADP").
2. Petitioners contend that the Port's actions are illegal in that they violate provisions of the California Environmental Quality Act (CEQA) at Public Resources Code Section 21000 et seq., and the CEQA Guidelines at 14 California Code of Regulations Section 15000 et seq.
3. The ADP will result in significant adverse impacts on the communities of San Leandro, Alameda, and Oakland. The Port has failed to prepare an adequate Environmental Impact Report, thus failing to fully analyze the adverse impacts of the ADP in violation of
4. Petitioner City of San Leandro is a municipal corporation in Alameda County. The City of San Leandro is adjacent to the Oakland International Airport.
5. Petitioner San Leandro Unified School District is a public entity in Alameda County. The School District operates numerous schools in San Leandro that are in close proximity to the Airport.
6. Petitioner San Lorenzo Unified School District is a public entity in Alameda County. The School District operates several schools in San Leandro and in unincorporated areas of Alameda County that are in close proximity to the Airport.
7. Respondent and Defendant Port Department of Oakland is a public entity that owns and operates the Airport. The Port is responsible for management of all Airport facilities and is the lead agency responsible for complying with the provisions of CEQA and the CEQA Guidelines. The Oakland Board of Port Commissioners is the decision-making body of the Port of Oakland.
8. Petitioners do not know the true names or capacities, whether individual, corporate, associate or otherwise, of real parties in interest, Does 1 through 20, inclusive, and therefore sues said real parties in interest under fictitious names. Petitioner will amend its petition and complaint to show their true names and capacities when these are ascertained.
STATEMENT OF FACTS
9. The Oakland International Airport consists of 2,445 acres in the southwestern portion of the City of Oakland in Alameda County. The Airport is bounded by the City of Alameda, the San Leandro Bay and the Airport Channel to the north; the Cities of San Leandro and Oakland to the east, and the San Francisco Bay to the south and west. The Airport is divided into two airfields, the North Airport and the South Airport. The South Airport contains commercial air passenger facilities, Runway 11/29 which is the Airport's principal runway, and air cargo facilities. The North Airport, which is the closest to the residential communities of Alameda and San Leandro, contains three runways, general
aviation, aviation maintenance, and air cargo facilities.
10. The Environmental Impact Report purportedly analyzes the ADP, however, there is no single planning document known as the ADP. The ADP is a group of Airport improvement projects that include expansion of two terminals, the Airport Roadway Project, the Airport Drive access reconfiguration, a ground transportation center and parking garage, parking lots, rental car service facilities, a provisioning building, ground equipment service center, jet fuel dispensing facility, maintenance base expansion, new cargo facilities, remote aircraft parking, and the widening of the Runway 11/29 Taxiway Access and Taxiway U.
11. On or before September 10, 1996, Respondent Port caused to be prepared a Draft Environmental Impact Report ("EIR") for the proposed project, purportedly to evaluate the environmental impacts of the ADP. The document also functioned as an Environmental
Impact Statement pursuant to the National Environmental Policy Act ("NEPA"). The lead agency pursuant to NEPA is the Federal Aviation Administration ("FAA"), which also provides funding for portions of the ADP. The documentation, which consisted of two volumes, was made available for public review and comment for sixty days after its release on September 10, 1996. In response to a request from the City of Alameda, the Port extended the public comment period an additional thirty days, until December 30, 1996. The Port did not hold any public hearings on the Draft EIR.
12. Petitioner City of San Leandro submitted written comments to the Port on the Draft EIR on or before November 20, 1996. Petitioner San Leandro Unified School District
submitted written comments on the Draft EIR on or before November 20, 1996. Petitioner San Lorenzo Unified School District submitted written comments on the Draft EIR on or about December 18, 1996.
13. Over twelve months after the comment period closed, on or about December 4, 1997, the Port issued the Final EIR. The Final EIR was substantially longer than the Draft EIR, consisting of three extensive volumes. During those twelve months, significant new information was added to the EIR.
14. On or about December 15, 1997, Petitioner City of San Leandro submitted additional written comments on the Final EIR.
15. On December 16, 1997, the Port held a public meeting at which it certified the Final EIR and adopted the proposed ADP. Representatives of the City of San Leandro, the San Leandro Unified School District, and San Lorenzo Unified School District gave oral
testimony at the public meeting.
16. Petitioners have performed all conditions precedent to filing this action by complying with the requirements of Public Resources Code Sections 21167, 21167.5, and 21167.7 by filing a Notice of Intent to File CEQA Petition with the Port and serving this Petition on the California Attorney General on or about January 14, 1998.
17. Petitioners are beneficially interested parties who will be directly and adversely affected by the environmental impacts caused by approval of the ADP. These direct impacts
include, but are not limited to, impacts from aircraft noise caused by increased air traffic and diversion of commercial air traffic from the South Airport to the North Airport, ground traffic congestion caused by the ADP, and significant air quality impacts resulting from increased aircraft flights and maintenance at the Airport. The increased noise impacts from
the Airport will disrupt the quality of life in residential areas in San Leandro and will interfere with instruction in several schools located in San Leandro and Alameda County.
18. The EIR did not adequately analyze the ADP's noise impacts on San Leandro, including single-event noise and low-frequency vibrations. In addition, the EIR failed to adequately analyze the existing environment. The EIR used outdated noise contours to
analyze the effects on San Leandro because it contained no analysis of how increased air traffic over San Leandro in 1996 and 1997, as a result of the Quiet Hours Program and a change in FAA flight management practices, impacted the residences and schools in San Leandro.
19. The EIR failed to fully analyze the safety issues with regard to increased air traffic over schools and residences.
20. The Port failed to adequately analyze the impacts on air quality and ignored feasible mitigation measures to reduce the impacts on air quality.
21. The Port failed to adequately analyze mitigation measures to reduce the significant impacts of the ADP and rejected, without explanation, proposed feasible mitigation measures suggested by commenters. For example, the Port summarily rejected a
mitigation measure to reduce noise in San Leandro by preventing commercial jet arrivals at North Airport. The EIR did not provide any analysis of the authority of the Port and the FAA, the Port's co-lead agency, to adopt the proposed mitigations. The mitigation measures that the Port does purport to adopt are inadequate. For instance, the Port proposes to shift commercial jet arrivals at North Airport to Runway 27L rather than Runway 27R to reduce
noise in San Leandro, but there is no indication of how this shift will be accomplished.
22. After circulation of the Draft EIR, but before certification, the Port added significant new information to the EIR. This late addition of information deprived the public of a meaningful opportunity to comment on several substantial adverse environmental effects and feasible ways to mitigate or avoid those effects. For instance, numerous feasible mitigation measures were proposed by commenters and ignored by the Port in the Final EIR. The Final EIR included hundreds of pages of extensive analysis absent from the Draft EIR,
including but not limited to, new information about proposed alternatives and impacts on wildlife. The Port acted on this extensive new information less than two weeks after the Final EIR was released, thus depriving the public of any opportunity to submit meaningful comments.
23. The Port failed to consider a range of reasonable alternatives to the ADP. The Draft EIR analyzed only two alternatives -- the ADP and no project. The Draft EIR mentioned several alternatives, but instead of analyzing them as alternatives, the EIR merely
explained why they would not be analyzed. Another alternative, the reduced project alternative, was mentioned in the draft, but not analyzed until the response to comments in the Final EIR. Addition of this analysis in the Final EIR requires recirculation. It was impossible to determine from the EIR what alternatives could meet the objectives of the project, because the objectives themselves were unclear. The time frame of the ADP was to
reduce congestion up to the year 2000, yet there was no Master Plan or other long-range plan indicating why the two-year plan was chosen. Further, the Port improperly rejected alternatives because they could not be met within this arbitrary two-year time frame. The Port failed to consider how the FAA and the Port could work together to reduce congestion at the airport. The Port failed to consider additional feasible alternatives, or to fully analyze feasible alternatives proposed by the commenters on the Draft EIR.
24. The Port failed to adequately analyze the cumulative impacts of the ADP and numerous other proposed projects, such as the extension of Runway 11/29 and a proposed new control tower.
25. The Port failed to adequately address the growth-inducing impacts of the ADP on the Airport and surrounding areas.
26. The Port adopted a Statement of Overriding Considerations, but the Statement was unsupported by substantial evidence.
27. The Port's findings supporting the reasons for rejecting alternatives and proposed mitigation measures were inadequate.
28. Numerous public agencies and individuals, including Petitioners, submitted detailed comments on the Draft EIR. The Port's responses to those comments were inadequate. In numerous instances, the Port dismissed comments with conclusory statements, such as "comment noted." In other instances, the Port rejected, without analysis, feasible mitigation measures and alternatives proposed by the commenters.
29. Respondent Port's actions in authorizing the ADP by certifying the Final EIR, which is flawed, inadequate and incomplete, in place of proper CEQA review as required by CEQA Guidelines, constitutes a prejudicial abuse of discretion in that Respondent failed to proceed in the manner required by law.
30. Petitioner has no plain, speedy or adequate remedy in the ordinary course of law unless the court grants the requested writ of mandate to require the Port to comply with its duties and set aside the approval of the ADP. In the absence of such remedies, the Port's approvals will remain in effect in violation of state law.
FIRST CAUSE OF ACTION
(Violations of CEQA - Inadequate EIR)
31. Petitioner hereby realleges and incorporates the allegations contained in paragraphs 1 through 30, inclusive.
32. The Port's actions on December 16, 1997, certifying the EIR and approving the ADP, constituted a prejudicial abuse of discretion in that the Port failed to proceed in the
manner required by law and failed to act on the basis of substantial evidence. Specifically, the Portūs actions are invalid because the Port relied upon an EIR which is not in accord with CEQA and the CEQA Guidelines, but rather is inadequate and insufficient in numerous respects, including, but not limited to, the following:
a. The EIR fails to adequately analyze the significant adverse environmental effects of the project including but not limited to:
1. substantial increases in aircraft noise impacts in the vicinity of the Airport, including a substantial increase in noise over San Leandro resulting from the diversion of commercial aircraft from the South Airport to the North Airport and from the
diversion of aircraft from Runway 27R to 27L.
2. increases in vehicular traffic in the roadways adjacent to the airport, particularly increases in traffic at the intersections of Davis and Doolittle Streets in San Leandro.
3. increases in air quality impacts in the Bay Area.
4. impacts related to wildlife, including the impacts on species protected by law.
5. cumulative impacts related to the ADP, including but not limited to traffic, air quality, impacts on habitat areas, and pollution.
b. The EIR fails to include reasonable mitigation measures which could eliminate or substantially lessen significant environmental impacts of the ADP and overstates the effectiveness of the few mitigation measures that are included. For instance, the EIR fails to require adequate mitigation measures for the ADP's noise impacts.
c. The EIR fails to adequately consider reasonable project alternatives which could eliminate or substantially lessen project-related impacts. The alternatives analysis is
sparse; the Draft EIR analyzes only two alternatives. Other alternatives are summarily rejected without adequate explanation. The Port rejects the reduced project alternative without an adequate environmental analysis or sufficient explanation of the authority of the FAA and the Port to manage Airport operations.
d. The EIR fails to adequately respond to comments.
33. The Port thereby violated its statutory duty under CEQA by certifying an EIR which fails to conform to the requirements of CEQA and the CEQA Guidelines. Accordingly, the Port's certification of the EIR and approval of the ADP must be set aside.
SECOND CAUSE OF ACTION
(Violations of CEQA; Inadequate Findings)
34. Petitioner hereby realleges and incorporates herein the allegations contain in paragraphs 1 through 33.
35. The Port's approval of the ADP in reliance on the EIR constituted a prejudicial abuse of discretion in that the Port failed to proceed in a manner required by law and failed to act on the basis of substantial evidence by failing to make proper written findings as required by Public Resources Code Section 21081 and CEQA Guidelines. Specifically, the Port:
a. failed to make the required findings regarding the reasons for rejecting alternatives;
b. failed to accompany the findings with an adequate statement of overriding considerations in that:
1. The statement of overriding consideration fails to discuss all of the unavoidable adverse impacts;
2. The alleged benefits of the ADP set forth in the statement of overriding considerations are not supported by a statement of facts documenting each benefit based upon the EIR and/or other information in the record;
3. The statement of overriding considerations does not discuss or set forth reasons, based on substantial evidence in the record, why the alleged benefits of the project override or justify the unavoidable adverse impacts of the project.
36. The Port thereby violated its duty under CEQA and the CEQA guidelines to adopt adequate findings. The Port's certification of the EIR and approval of the ADP must be set aside.
THIRD CAUSE OF ACTION
37. Petitioner hereby realleges and incorporates herein the allegations contain in paragraphs 1 through 36.
38. Petitioners are informed and believe that Respondent Port may implement portions of the ADP before adequate environmental review has been performed.
39. Petitioners have no adequate remedy at law for the injuries resulting from Respondentūs conduct and unless Respondentūs implementation of the ADP is restrained and enjoined, Respondentūs conduct will result in irreparable injury to Petitioners.
WHEREFORE, Petitioners pray for relief as follows:
1. For alternative and peremptory writs of mandate commanding the Port of Oakland to vacate and set aside its actions certifying the environmental impact report and approving the ADP.
2. For alternative and peremptory writs of mandate commanding the Port of Oakland to comply with CEQA and take any other action as required by Section 21168.9 of the Public Resources Code.
3. For a preliminary and permanent injunction restraining the Port from taking any actions to carry out the ADP, pending trial on the merits.
4. For attorney's fees pursuant to Code of Civil Procedure section 1021.5.
5. For costs of suit incurred herein.
Dated: February 6, 1998
MEYERS, NAVE, RIBACK, SILVER & WILSON
By: _________________________________ Rick W. Jarvis
Attorneys for Petitioners and Plaintiffs, City of San
Leandro, San Leandro Unified School District, and
San Lorenzo Unified School District