Novato sued over actions leading to anti-rail NCRA lawsuit
- Published Wednesday, October 17, 2007, by the Novato Advance
City loses round in train lawsuit
Judge denies injunction against fixing tracks
By Paul Jones
A few years back, the old railroad running through downtown Novato
might have seemed nothing more than a quaint reminder of history, a
rustic compliment to the city's historic buildings and small-town
atmosphere. Now the long-derelict line is the subject of two
lawsuits, one by the city against the North Coast Railroad Authority,
the other against the city by the Transportation Solutions Defense
and Education Fund, a Bay Area advocacy group that supports railroad
The city's suit against the NCRA was dealt a blow Monday when Marin
County Superior Court Judge James R. Ritchie denied the city's
request for a temporary injunction to freeze NCRA work on tracks
along the Russian River division, the southern part of the agency's
rail activation project.
Mitch Stogner of the NCRA said that the court's refusal to issue an
order to the NCRA to cease repairs was appropriate, given the nature
of the NCRA's renovation work.
"The person or persons seeking a temporary restraining order have to
demonstrate that an action must be taken immediately or someone or
something will suffer harm," he said. "What they were asking was to
put the breaks [BATN bets he meant "brakes"] on three projects, two
of them which are emergency repair projects ... and the judge
said `no way,'" he said.
Regarding charges made in the city's lawsuit, Stogner said the
repairs to the tracks were "in kind," and did not require a new
environmental impact report.
"Under the California Environmental Quality Act, if the repairs that
are contemplated are in-kind repairs, then they're permissible
without a full EIR, and that has always been our contention, that we
don't need a full EIR to repair the line." Stogner confirmed that a
focused EIR was in process to evaluate the impact of rail operations.
"The other issues the city is concerned about, traffic noise, that
is all being addressed in an environmental impact report that is
underway, that the city has already commented on," he said.
City attorney Jeffrey Walter said Monday's decision was incorrect
according to his understanding of state and federal environmental
"The NCRA has conducted no environmental analysis, or approved it
prior to the work they're doing on this track," he said. "They have
not approved or prepared a negative declaration, mitigating negative
declaration, or an EIR, which is required under CEQA."
Walter said the agency's strategy to claim exemption from CEQA
had poor legal standing with regard to existing precedent.
"What the NCRA has done is divide the project into many parts to
avoid CEQA," he said.
Walter said that a comprehensive analysis was legally required.
"You can't break these projects into pieces hoping each will be
exempt," he said.
Walter said the NCRA was dishonestly claiming upgrades to the tracks
were merely repairs, noting they would improve the tracks to class
three or four, which would allow faster train traffic. He said the
NCRA used this to claim exemption from doing a comprehensive EIR,
which would evaluate the impact of rail work and future rail traffic.
"They say they can evaluate the upgrade work separate from the
operations, and that is an anathema to CEQA," he said.
The next stage of the lawsuit will take place on Dec. 11, when the
city will again seek a temporary injunction against the NCRA. Walter
said the city was also considering an appeal of the recent decision.
"We're looking into that right now," he said.
Stogner said the NCRA was "confident" that the city's suit would not
But the city itself is in the legal crosshairs of another agency.
TRANSDEF president David Schonbrunn, a vocal Sonoma Marin Area Rail
Transit District project advocate, who has also spoken publicly in
defense of the NCRA, claims the city violated the Brown Act, a law
which provides direction to public entities regarding actions that
can be taken during closed sessions, among other things.
"What the city has been doing, claiming the NCRA has made a mockery
of the Brown Act is hypocrisy of the worst kind," said Schonbrunn.
"They essentially pushed SMART to initiate an environmental impact
Schonbrunn said a closed-session item to send a letter requesting a
supplemental EIR was an action the council wasn't legally allowed to
take without public notice and input.
"The Brown Act is to be construed quite narrowly," said Schonbrunn.
"The exemption under which the council met was an exemption (for
exploring) the possibility of initiating litigation."
Schonbrunn said that taking actions to explore how to pursue
litigation, or begin pursuing it, was illegal. He said that the
council's action to send the letter to SMART demanding a supplemental
EIR, which in part addressed concerns over SMART's EIR due to revised
freight estimates made in 2007 after the NCRA signed a contract with
an operating company, was a pretense for attacking the NCRA.
According to Schonbrunn, it was therefore not permitted as a closed
session action under the Brown Act.
"(The EIR process) had nothing to do with SMART, it was a technique
for getting at the NCRA," he said. "The city attorney basically
admitted as much in his letter ... he said (the council) is entitled
to take actions in closed sessions to further our litigation.
Walter, responding to the accusations, said Schonbrunn's
interpretation of the Brown Act was mistaken, and implied that
TRANSDEF was connected with the NCRA.
"I have a serious disagreement with Mr. Neary, Mr. Schonbrunn's
attorney, who is also chief council for the NCRA," he said. "(The)
process of considering litigation allows sending letters ... to
another agency making specific demands so that there's no claim
later on the city didn't advise the other party of claims the city
might be making."
Walter indicated he felt the lawsuit might partly be in retaliation
to the city's lawsuit against the NCRA.
"I don't think the filing is a coincidence," he said.
Chris Coursey of SMART stated that there was no connection between
the district and TRANSDEF.
"We're definitely not affiliated with TRANSDEF and not party to any
suits they are bringing against Novato," he said.
But while Walter noted that NCRA attorney Chris Neary was working on
the TRANSDEF lawsuit, Schonbrunn said that a significant contributor
to the city's lawsuit against the NCRA was Mike Arnold, a vocal SMART
"I've uncovered dozens and dozens of correspondences between (city
staff) and Mike Arnold," said Schonbrunn.