Staff Report1pp�p'S
COUNCIL AGENDA REPORT
DATE: MAY 8, 2015
TO: MAYOR AND TOWN COUNCIL
FROM: LES WHITE, INTERIM TOWN MANPFq
MEETING DATE: 05/19/15
ITEM NO: S
SUBJECT: HIGHWAY 85 EXPRESS LANES
DECISION ON WHETHER TO JOIN IN LITIGATION AGAINST
CALIFORNIA DEPARTMENT OF TRANSPORTATION (CALTRANS) AND
THE VALLEY TRANSPORTATION AUTHORITY (VTA) IN REGARD TO
HIGHWAY 85 EXPRESS LANES PROJECT
RECOMMENDATION:
Staff recommends that the Town Council take a position on whether to join in litigation in regard
to the Highway 85 Express Lanes Project.
BACKGROUND:
In the early 1990's, the California Department of Transportation ( Caltrans) and the Santa Clara
County Traffic Authority ( SCCTA), the predecessor to the Valley Transportation Authority
(VTA), constructed Highway 85 through Los Gatos. At the time the Town entered into two
agreements, one each with the SCCTA (Attachment 1) and with Caltrans (Attachment 2).
The design of Highway 85 included an expansive center median. The initial project identified
this median as a location for future mass transit options, most specifically light rail. The
agreement with the SCCTA includes specifics for the number of lanes on the freeway and the
size of the median islands as well as a provision precluding the construction of additional
freeway lanes without the approval of the Town Council (Attachment 1, page 3, provision 14).
On January 1, 1995, the SCCTA merged with the county Congestion Management Agency to
become the SCVTA. The California Public Utilities Code establishes regulations related to
transit agencies. Part 12, Section 1 of that code establishes the VTA by renaming the SCCTA
and with the following language:
PREPARED BY: ROBERT SCH
Town Attorney
Reviewed by:
Town
MATT MORLEY�I� " "/ Ofd
Director of Parks and *Public 45
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Attorney Einance
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MAYOR AND TOWN COUNCIL
SUBJECT: HIGHWAY 85 EXPRESS LANES
MAY 8, 2015
BACKGROUND (cont'd):
The Santa Clara County Transit District is renamed the Santa
Clara Valley Transportation Authority. Any reference in this
part, or in any other provision of law or regulation, to the Santa
Clara County Transit District shall be deemed to refer to the
Santa Clara Valley Transportation Authority. Nothing in the act
that added this section alters, impairs, or terminates the district's
status as a transit district, and as an ongoing legal entity, or any
of its legal obligations.
The California Department of Transportation ( Caltrans), in cooperation with the Santa Clara
Valley Transportation Authority (VTA), proposes to convert the existing High - Occupancy
Vehicle (HOV) lanes on State Route (SR) 85 to express lanes and add a second express lane in
both directions between SR 87 and Interstate 280 (I -280). Use of the HOV lanes is currently
restricted to vehicles with two or more occupants, motorcycles, and certain alternative fuel
vehicles. The conversion of the HOV lanes to express lanes would allow single- occupant
vehicles (SOVs) to pay a toll to use the lanes, while HOVs would continue to use the lanes for
free.
The express lanes would extend along the entire 24.1 -mile length of SR 85 and 1.5 miles of
United States Highway 101 (US 101) from the southern end of SR 85 to Metcalf Road in San
Jose. The project would also convert the SR 85 /US 101 HOV direct connectors in San Jose to
express lane connectors, add signs to 4.1 miles of US 101 north of SR 85 in Mountain View and
Palo Alto and to 1.8 miles of US 101 between Metcalf Road and Bailey Avenue in San Jose, and
add an auxiliary lane to a 1.1 -mile segment of northbound SR 85 between South De Anza
Boulevard and Stevens Creek Boulevard in Cupertino. The total project length is 33.7 miles.
Caltrans and the VTA conducted an initial study/ environmental assessment for the proposed
project. The Town provided input to VTA (Attachment 1) and to the initial study/ environmental
assessment (Attachment 2) as did numerous other stakeholders. The full environmental
document contains four large files and can be found here:
http: / /www. doff. ca. yov /dist4 /envdocs.lstm# <http: // www .dot.ca.,-,ov /dist4 /envdoes.htm
Caltrans adopted a Negative Declaration and Finding of No Significant Impact as a result of the
environmental work conducted for the project. This action begins a 30 day timeframe for which
legal challenge to the Negative Declaration can occur. This window ends on May 30, 2015.
Both Cupertino and Saratoga have already approved filing litigation to challenge the CEQA
determination. Mountain View will be deciding whether to join the ligation at their meeting on
May 19, 2015.
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: HIGHWAY 85 EXPRESS LANES
MAY 8, 2015
DISCUSSION:
Highway 85 Agreements
The Highway 85 agreement with the SCCTA discusses the extent of the freeway, including the
number of lanes and the width and future use for the medians, and includes the provision for
future mass transportation. The agreement with Caltrans discusses the extent of town streets to
be impacted and details around maintenance and access. The Caltrans agreement is silent on the
size and scope of the freeway.
The Highway 85 Agreements are a separate issue from the environmental review and not subject
to the thirty day CEQA timeframe and would not be included in the CEQA lawsuit. The Town
Council could provide guidance to staff on actions to take in relation to these agreements. Past
correspondence to the VTA is provided as attachment 3, including a letter from then Mayor
Leonardis that resulted from an April 21, 2014 Council update on the project.
Environmental Review
The California Environmental Quality Act (CEQA) is the primary state law that requires public
agencies and their decision - makers to understand and evaluate the environmental consequences
of their discretionary decisions before making them. If a project is subject to CEQA and no
exemptions apply, agencies must conduct an initial study to determine whether the project may
have a significant effect on the environment and what type of CEQA document is needed. For
the Route 85 Express Lane Project, the Initial Study resulted in no finding of impacts from the
project and resulted in the adoption of a Negative Declaration by Caltrans.
Because CEQA's policies prefer EIRs, the law effectively protects those who prepare them by
applying the "substantial evidence" standard of judicial review to EIR challenges. Under that
standard, as long as the EIR's factual conclusions are supported by substantial evidence, a
reviewing court may not reweigh that evidence and may not set aside the agency's decision, even
if the opposite conclusion could have been reached. In stark contrast, the "fair argument"
standard of review applies to court challenges to Negative Declarations and Mitigated Negative
Declarations. The fair argument standard entails a strong presumption in favor of requiring full
EIRs. The presumption is embodied in numerous provisions, which require that if a project is not
exempt and may cause a potential adverse environmental impact, the lead agency must prepare
an EIR. It takes only one piece of substantial evidence showing that a project may have a
significant adverse impact to require preparation of a full EIR under the fair argument standard,
even if other and more voluminous contrary evidence exists.
The areas of greatest concern for Los Gatos and the other West Valley Cities include noise and
air pollution associated with the project. These have been ongoing concerns for residents of
communities who live adjacent to the freeway. The Initial Study and Negative Declaration for
the Route 85 Express Lane Project found no significant impacts in these areas.
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MAYOR AND TOWN COUNCIL
SUBJECT: HIGHWAY 85 EXPRESS LANES
MAY 8, 2015
DISCUSSION (cont'd):
Both Saratoga and Cupertino have already decided to file litigation challenging the CEQA
determination. Mountain View will be discussing whether to join the litigation at their meeting
on May 19, 2015. The main concern is that the Initial Study does not provide enough depth of
evaluation for the scope of this project and maintains that a full Environmental Impact Report
should be undertaken. Cupertino provided a comprehensive response to the Initial Study
(Attachment 4). Cupertino's fundamental concerns with the Project can be summarized as
follows:
• The Project has the potential to hinder or preclude altogether light rail transit
along the SR 85 corridor;
• The Project will discourage carpooling and the use of electric vehicles;
• The Project, as currently designed, is socially inequitable and fails to achieve its
own goals;
• The Initial Study fails to adequately evaluate the Project's environmental impacts
or to propose effective mitigation measures, rendering the document inadequate
under both the California Environmental Quality Act ( "CEQA "), Public
Resources Code section 21000 et seq. and the National Environmental Policy Act
( "NEPA "), 42 U.S.C. section 4321 et seq;
• The City is concerned that federal funding for the Project will require the existing
truck weight limit on SR 85 to be removed, which would create a significant
environmental effect that must be analyzed;
• VTA'S environmental review does not consider reasonable alternatives to the
Express Lane Project.
CEQA provides a range of available remedies, allowing judges case -by case flexibility. An order
finding agency non - compliance must include one or more of three available remedies: 1) voiding
a decision, finding, or determination either in whole or part, 2) suspending activity on the
specific project that could result in an adverse change to the environment until the agency has
come into compliance, or 3) mandating that the agency take specific actions to come into
compliance. However, courts may not direct the "agency to exercise its discretion in any
particular way." Thus, while courts may require an agency to perform additional analysis of a
problem or to provide more evidence to support its conclusion, they cannot direct the agency to
reach a particular outcome or decision.
PAGES
MAYOR AND TOWN COUNCIL
SUBJECT: HIGHWAY 85 EXPRESS LANES
MAY 8, 2015
ALTERNATIVES:
Alternative 1: The Town Council could take a position in support of the project or take no
position in relation to the project.
ENVIRONMENTAL ASSESSMENT:
This action is not a project as defined under CEQA, and no further action is required.
FISCAL IMPACT:
Joining in the litigation is anticipated to cost up to $50,000. Funding would come from fiscal
year 2014/15 savings and be incorporated into the 2015/16 fiscal year budget.
Attachments:
L "Route 85 Performance Agreement' between the Town of Los Gatos and the Santa Clara
County Traffic Authority
2. "Freeway Agreement' between the Town of Los Gatos and the State of California
3. Official Town of Los Gatos correspondence with the VTA regarding Highway 85
4. City of Cupertino response to Initial Study
5. Public comments received through 11:00 a.m. Thursday, May 14, 2015