Opposition Objections

Cal. Super. - 6th Dist.June 16, 2020

OQOQNOUO‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOCOWVOU'I-POONA 20CV367292 Santa Clara - Civil Electronically Filed RICHARD DOYLE, City Attorney (88625) by Super'Or Cw” 0f CA, NORA FRIMANN, Assistant City Attorney (93249) County of Santa Clara, KATHRYN J. ZOGLIN, Senior Deputy City Attorney (121 1M) 6/1 7/2020 5:19 PM 3:602 0f tge CityCIIA‘ttOFgey 16th Fl Reviewed By: R. Walker ast anta ara treet, oor San José, California 951 13-1 905 gasel#2°?X276;§69§ Telephone Number: (408) 535-1900 "V9 Ope' Facsimile Number: (408) 998-3131 E-Mail Address: cao.main@sanioseca.qov Attorneys for CITY OF SAN JOSE Exempt from Filing Fees -Gov. Code § 6103 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA UNLIMITED JURISDICTION WILLOW GLEN TRESTLE . CONSERVANCY, an unincorporated case Number' 20CV367292 aSSOC'at'O“ RESPONDENT CITY 0F SAN JOSE’s Petitioner OPPOSITION TO TEMPORARY ’ RESTRAINING ORDER v. Date: TBA CITY OF SAN JOSE, et. a|., Time: TBA D t: 3 Respondents. ep COUNTY OF SANTA CLARA, et a|., Real Parties in Interest. l. INTRODUCTION The City does not question Petitioner’s passion for the trestle bridge. It and a related group, Friends of the Willow Glen Trestle, have spent the past six years trying to stop the City from implementing its project to remove and replace the dilapidated trestle by means of a series of CEQA lawsuits, all of which they have lost. Petitioner Willow Glen Conservancy file this meritless ex parte petition and request for a temporary restraining order, which represents a last-ditch effort to stop the City of San Jose from removing and replacing a delipidated wooden trestle so that the City can provide a long- planned connector for its trail network. This lawsuit represents the third CEQA challenge 1 CITY’S OPPOSITION TO TEMPORARY RESTRAINING ORDER Case No. 20CV367292 1722929.doc O©mNOUCJ1-PC»JN-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-hOONAOCQWVmU‘l-POONA Petitioner has filed since the approval of the project through a Mitigated Negative Declaration (MND) that was certified in 2014. This Court should deny the ex parte request for an expedited hearing and for a temporary restraining order because the petition is without merit. As a result of its repeated unsuccessful challenges - several of which it has filed right when the short window available to carry out the project begins -- this project has been delayed for over six years. The Court of Appeal just addressed the very legal issue that the Petitioner attempts to raise again, when subsequent CEQA review is triggered. Now, with the City set to remove the trestle bridge next week, Petitioner is once again attempting to use CEQA t0 delay demolition just long enough to prevent the project from moving forward. Its argument, which is based on a conservation easement recorded over eight years ago, is without merit and reflects a continuing abuse of CEQA. The City files this opposition to the ex parte request. If the Court grants the ex parte request for an expedited hearing on the requested temporary restraining order, the City will provide more extensive pleadings. l|. STATEMENT OF THE CASE A. Factual Background 1. The Project The project consists of removal of a wooden railroad trestle bridge and its replacement with a new, steel truss pedestrian bridge to service the City’s trail system. The pedestrian bridge will include design elements recalling operations of the Western Pacific Railroad and trestle structure, including large emblem insets in the pavement for Western Pacific and Union Pacific Railroads. The City has been working on this project since about 2003. The City has owned the trestle since 201 1. The City bought the right of way to provide a connection as part of the Three Creeks Trail, a unique trail system linked with a multi-trail network. 2 CITY’S OPPOSITION TO TEMPORARY RESTRAINING ORDER Case No. ZOCV367292 1722929.doc O©mNOUCJ1-PC»JN-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-hOONAOCQWVmU‘l-POONA 2. Environmental Review and Approval of the Project In 2004, the City completed an environmental impact assessment (an initial study and mitigated negative declaration) for the Los Gatos Creek Trail, that included the trestle. (See Friends of the Willow Glen Trestle v. City of San Jose (201 06) 2 Cal.App.5th 457.) The 2004 CEQA document described trestle retrofits based on what was known at the time; that did not include work in the creek. Ten years after the 2004 environmental study, the City conducted an engineering study to further analyze the potential to retrofit the trestle. The City prepared an initial study in 2014. (RJN Ex. A.) The 2014 Initial study mentioned the conservation easement. (|d.) In December 2013, the Open Space Authority, which is a party to the conservation easement, commented on the Initial Study and the project, pointing out the easement, indicated its support of the project, and noted that the City’s communication was sufficient to comply with the conservation easement. (RJN Ex. B.) The City approved the project in 2014 based on a mitigated negative declaration (“MND”). (Friends of the Willow Glen Trestle v. City of San Jose, supra.) The project is to remove and replace the trestle. In order to do so, four permits are necessary due to work in the Los Gatos Creek, including a streambed alteration permit from the California Department of Fish and Wildlife (“CDFW”). The MND contemplated this permitting requirement and the City’s approval of the project included obtaining this permit. The permitting authorities only allow the City to work on the project during a narrow window of time: from June 15th through October 15th. 3. The Trestle ls in Poor Condition The trestle was in a degraded state even when the City acquired it in 201 1. In 2014 it had rotted timbers and parts of it were burned. It has been fenced off to the public since 2014 because it is unsafe. City consultant Jacobs Engineering visited the trestle site in February 2019, and again in June 5, 2019, and noted significant deterioration of the trestle, including deterioration ofties (i.e., pieces of timber spanning the width of the trestle parallel to the creek banks); missing 3 CITY’S OPPOSITION TO TEMPORARY RESTRAINING ORDER Case No. ZOCV367292 1722929.doc O©mNOUCJ1-PC»JN-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-hOONAOCQWVmU‘l-POONA ties; fire damage; bent and damaged railing posts along both edges of the trestle; warped metal grating at the edge of the trestle’s deck, likely from fire and vandalism; significant damage to timbers supporting the metal grating; and deterioration of the trestle’s stringers (i.e. wooden beams running the length of the trestle that constitute the main structural support for its deck). (RJN Ex. C.) B. Previous Litigation 1. Petitioner’s First Lawsuit Challenging the Project’s MND Failed In 2014, the Friends of the Willow Glen Trestle filed a CEQA suit challenging the City’s approval of the project based on the MND (Santa Clara County Superior Court No. 1-14-CV 260439). (RJN Ex. D.) In this first CEQA challenge, the Friends ofthe Willow Glen Trestle claimed that the City should have proceeded via an EIR rather than a MND, because the City should have treated the trestle as an historic resource. (Id.) The action did not mention the conservation easement. The trial court granted Friends’ petition for writ of mandate. In 2016 the Court of Appeal vacated the trial courtjudgment and remanded the case to “determine whether the City’s adoption of the MND is supported by substantial evidence that the Trestle is not a ‘historical resource’ under CEQA.” (Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457.) On remand, in November 2017, the trial court issued a judgment in favor ofthe City, finding that substantial evidence supported the City’s decision that the trestle is not a historic resource. Thatjudgment is final. The Court awarded the City costs. Petitioner has yet to pay them. 2. Petitioners Delayed the Project Again, With Several TROs and an Appeal, Which the City Ultimately Won On March 19, 2018, the City submitted an application to the California Department of Fish and Wildlife for one of the necessary permits. (Willow Glen Trestle Conservancy v. City of San Jose (2020) 49 Cal.App.5th 127, *1. In April 2018, the Department issued an Incomplete Notification, which advised the City that its application was incomplete and invited the City to 4 CITY’S OPPOSITION TO TEMPORARY RESTRAINING ORDER Case No. ZOCV367292 1722929.doc O©mNOUCJ1-PC»JN-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-hOONAOCQWVmU‘l-POONA revise it. (Id.) In October 2018, the Department issued the permit, subject to terms and conditions. (Id. *2.) After receiving the permit on October 4, 2018, the City had secured all the required permits and was ready to begin work on the project. The permits limit in-stream work to the dry season, from June 15 to October 15. On receiving the Streambed Alteration Agreement for the project from the State on October 4, 2018, the City was ready to start work. The City intended to have completed as much work as possible in the eleven days remaining to October 15, 2018, the end of the dry season when work in the creek was allowed. On October 4, 2018, the Friends of the Willow Glen Trestle and the Willow Glen Trestle Conservancy petitioned for a writ of mandamus and applied for a temporary restraining order and preliminary injunction against the project (Santa Clara County Superior Court No. CIV 489446). (RJN Ex. E.) They sued the City and the California Department of Fish and Wildlife. The Trial Court issued a TRO pending a hearing on the preliminary injunction. On October 11, 2018, the Trial Court denied the request for a preliminary injunction. By that time, only four days remained until the expiration of the allowed work period. Four days was insufficient time to mobilize crews to begin work. The City had to wait until June 2019. Mobilization and site preparation were scheduled to start on June 17, 2019, to complete in one week. Demolition of the trestle was scheduled to start on June 24, 2019, to complete in one week. Installation of the new bridge was scheduled to start on July 1, 2019. In June 2019, Petitioner filed a second motion for a preliminary injunction against the project. The Honorable Thomas Kuhnle granted a preliminary injunction, but allowed pre- construction work, mobilization and site preparation to proceed pending a hearing on the merits of the writ petition. After briefing and a hearing, the Trial Court denied the mandate petition on the merits and issued a judgment for the City. Petitioners appealed. On May 18, 2020, the Sixth Appellate District denied the Conservancy’s appeal and ruled in favor of the City. (Willow Glen Conservancy v. City of San 5 CITY’S OPPOSITION TO TEMPORARY RESTRAINING ORDER Case No. ZOCV367292 1722929.doc O©mNOUCJ1-PC»JN-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-hOONAOCQWVmU‘l-POONA Jose (2020) 49 Cal.App.5th 127.) The Court rejected the Conservancy’s argument that supplement environment review was required. It explained that CEQA Guideline section 15162, subsequent CEQA review only applies in limited circumstances. (Id. at *3.) It explained that the project included obtaining the permit from the state, and the City was merely implementing the project that was already approved. (Id. at *4.) There was no further discretionary approval on the part of the City and no supplemental environmental review was required by CEQA. (Id.) This decision is final. Ill. LAW AND ARGUMENT A. The Request for a TRO Should Be Denied Because the Conservancy Will Not Prevail on the Merits A TRO should not issue here because Petitioner will not prevail on the merits. In Tahoe Keys Property Owners’Association v. State Water Resources Control Board (1 994) 23 Cal.App.4th 1459, the court articulated the standard for issuing injunctive relief: In determining whether or not to issue a preliminary injunction, a trial court must evaluate two interrelated factors. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm the plaintiff may suffer if the injunction is denied as compared to the harm that the defendant may suffer if the injunction is granted. (Id. at 1470-71 [citation omitted]. See also San Francisco Newspaper Printing C0,, Inc. v. Superior Court (Miller) (1985) 170 Cal.App.3d 438, 442 [A preliminary injunction must not issue unless it is “reasonably probable that the moving party will prevail on the merits.”].) A plaintiff who seeks an injunction against a public entity bears a heavier burden than a plaintiff under other circumstances. (Tahoe Keys Property Owners’Assoc., supra, 23 Cal.App.4th at 1471) [public policy considerations come into play when respondent is a public agency].) B. This Action ls Barred by Res Judicata As noted above, Petitioner has filed several petitions for writ of mandate against the City alleging CEQA violations. It should not be allowed to file serial lawsuits. This lawsuit is based on information that was publicly available and in Petitioner’s possession since at least 2014. The conservation easement was recorded in 201 1. (Ex. A to Brandt-Hawley Dec.) As 6 CITY’S OPPOSITION TO TEMPORARY RESTRAINING ORDER Case No. ZOCV367292 1722929.doc O©mNOUCJ1-PC»JN-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-hOONAOCQWVmU‘l-POONA discussed above, the conservation easement was noted in the City’s 2014 Initial Study, which has been part of the administrative record in Petitioner’s 2014 and 2018 litigation. (RJN Ex. A.) This lawsuit is barred under the doctrine of res judicata. (See Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897 [“Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.”]; Ballona Wetlands Land Trust v. City of Los Angeles (201 1) 201 Cal.App.4th 455, 481 (201 1) [“any challenge to an EIR or other agency action arising from facts in existence before the entry of judgment must be asserted in the proceeding before the entry ofjudgment.”]; Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.) Res judicata bars a cause of action that was or could have been litigated in a prior proceeding. (Federal Home Loan Bank of San Francisco v. Countrywide Financial Corporation (2013) 214 Cal.App.4th 1520, 1527.) Res judicata applies when: “(1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the proper proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” (Federation of Hillside & Canyon Assns., supra, 126 Cal.App.4th at 1202.) It “bar[s] the litigation not only of issues that were actually litigated but also issues that could have been litigated.” (Id., emphasis added.) There are final decisions in both Santa Clara County Superior Court numbers 1-14-CV- 260439 and CV335801. In both, Petitioner claimed the City violated CEQA. (RJN Exs. D, E.) In the former, the Petitioner was the Friends of the Willow Glen Trestle. In the latter, the Petitioners were the Friends of the Willow Glen Trestle and the Willow Glen Trestle Conservancy. (Id.) Mr. Ames was the founding member of both; the description of each is essentially the same. (Petition, 118; Ames Dec. 111; see RJN Ex. D 1T3; RJN Ex. E, 11113-4.) Both are represented by Susan Brandt Hawley, who has represented both Petitioner groups in all prior litigation involving the Project. This lawsuit also involves the same parties and claims that the City has violated CEQA. 7 CITY’S OPPOSITION TO TEMPORARY RESTRAINING ORDER Case No. ZOCV367292 1722929.doc O©mNOUCJ1-PC»JN-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-hOONAOCQWVmU‘l-POONA The issue of the conservancy easement could have been, but was not, raised in the previous lawsuits. Petitioner is barred under res judicata from raising it now. C. There ls No CEQA Violation Petitioner claims that it has just received information about the conservation easement, and therefore supplemental CEQA review is required. That is factually and legally incorrect. Petitioner asserts that further CEQA review is required under CEQA Guidelines section 15162(a)(3)(A). Petitioner selectively cites from the provision. It omits the first part of the Guideline. Guideline section 15162(3) provides: “New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted, (A) The project will have one or more significant effect not discussed in the previous EIR or negative declaration.” The information is not new and has been publicly available since 201 1. The conservation easement was recorded in 201 1. (Ex. A to Brandt-Hawley Dec.) Petitioner has had this information for over six years. Petitioner has had the 2014 Initial Study, which mentions the easement. (RJN Ex. A.) The Open Space Authority submitted its letter of support for the project in December 2013 and mentions the conservation easement it this letter, which was part of the administrative record in the Friends of the Willow Glen Trestle lawsuit, which Petitioner filed in 2014. (RJN Ex. B.) Further, the conservation easement was pointed out as being part of the original Project; as such, no additional discretionary approvals are needed and no subsequent CEQA review is required. (RJN Ex. A; see Willow Glen Trestle Conservancy v. City of San Jose (2020) 49 Cal.App.5th 427, which also addressed when subsequent CEQA review is required and rejected Petitioners’ arguments.) Petitioner will not prevail under CEQA Guidelines section 15162(a)(3)(A). / / / / / / / / / 8 CITY’S OPPOSITION To TEMPORARY RESTRAINING ORDER Case No. 200v367292 1722929.doc O©mNOUCJ1-PC»JN-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-hOONAOCQWVmU‘l-POONA D. Removal of the Trestle is Not Covered by the Easement Petitioners ignore the language of the conservation easement. The plain language demonstrates that the removal of the trestle bridge does not trigger the “written approval” requirement in the conservation easement. Section B.1 of the conservation easement specifically addresses “limitations” and “restrictions.” In relevant part, it states: . . . Permissible Uses: The Property shall be used and maintained for open space and recreation, specifically, for development of a trail, and be open to the public, in perpetuity. . . . [[f] . . . Structures: No new structures or improvements shall be erected on the Property without written approval of the Grantees . . . “ (Ex. A to Brandt-Hawley Dec.) The plain language of the conservation easement requires the City to obtain “written approval” when it is erecting a new structure or improvement. The removal of the trestle bridge is not the erection of a new structure or improvement. Accordingly, the City is not required to obtain written approval. Moreover, the removal of the trestle bridge is consistent with the purpose and intent of the conservation easement. The City took possession of the trestle bridge in December 201 1. It had not been maintained for at least the ten years before the City took possession, and it suffered from rotting timbers and a lack of a solid deck surface. (RJN Ex. C.) Because of public safety concerns, the City erected a fence to prevent its use by the public. The prohibition on public use of the trestle bridge has continued. The conservation easement mandates the City to maintain the Property as open space that is open to the public for recreational use. The City’s action of removing a public safety hazard is maintenance consistent with the mandate to keep the Property open to the public for recreational use. In short, removal of the trestle is consistent with the intent 0f the conservation easement and does not trigger the “written consent” required when erecting a new structure or improvement. E. The Petition Represents an Abuse of CEQA It is apparent that Petitioner is using CEQA to once again stall Project implementation. While it now asserts that the conservation easement requires additional CEQA review, it did 9 CITY’S OPPOSITION TO TEMPORARY RESTRAINING ORDER Case No. ZOCV367292 1722929.doc O©mNOUCJ1-PC»JN-\ NNNNNNNNNAAAAAAAAAA mVOUU‘l-hOONAOCQWVmU‘l-POONA not file suit when it allegedly became aware of the easement in November 2019 or years ago when it had access to this information. Rather, it waited until this week, the beginning ofthe dry season during which the City is permitted to perform Project work. Petitioner has previously employed this tactic: in its 2018 CEQA lawsuit, it asserted that the City’s March 2018 application for a State permit required it to complete an EIR. Although Petitioner was aware of the permit application since at least June 2018, it delayed in filing an action and seeking a TRO for four months. Although CEQA seeks t0 promote thorough analyses of projects’ environmental impacts, that goal must be balanced against the public’s interests in finality and efficiency. (Friends of College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, 949 [Section 21 166 and Guidelines § 15162 “are designed to balance CEQA’s central purpose of promoting consideration of the environmental consequences of public decisions with interests in finality and efficiency.”].) CEQA is not intended to delay projects. (See, e.g., Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 50-51 [short statute of limitations for certain CEQA actions is intended to avoid delay and achieve prompt resolution of CEQA claims]; Citizens for the Restoration of L Street v. City of Fresno (2014) 229 Cal.App.4th 340, 371 [“we do not believe the Legislature intended CEQA to be applied in a way that maximizes the expense and delay incurred before a final decision is reached...”].) The City, and ultimately the City’s taxpayers, have incurred significant costs related to the Project. The public has been deprived for years of the ability to enjoy a complete and safe Three Creeks Trail for recreation. Petitioner should not be allowed to continue stalling the Project by this frivolous lawsuit and request for injunctive relief. Respectfully submitted, Dated: June 17, 2020 RICHARD DOYLE, City Attorney By: /s/Kathryn J. Zoq/in KATHRYN J. ZOGLIN Senior Deputy City Attorney Attorneys for CITY OF SAN JOSE 1O CITY’S OPPOSITION TO TEMPORARY RESTRAINING ORDER Case No. ZOCV367292 1722929.doc