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06 June 27, 2005 Plans and ProgramsRECORDS 73207 PLEASE NOTE 12:30 P.M. START TIME OF THE JUNE 27, 2005 PLANS AND PROGRAMS COMMITTEE MEETING 11.36.15 RIVERSIDE COUNTY TRANSPORTATION COMMISSION PLANS AND PROGRAMS COMMITTEE MEETING AGENDA TIME: 12:30 P.M. DATE: June 27, 2005 LOCATION: Board Chambers, 1" Floor County of Riverside Administrative Center 4080 Lemon Street, Riverside *** COMMITTEE MEMBERS *** Michael H. Wilson/Gene Gilbert, City of Indio, Chairman Daryl Busch/Mark Yarbrough, City of Perris, Vice Chairman Shenna Mogeet / John Chlebnik / Jon Winningham, City of Calimesa Mary Craton/John Zaitz, City of Canyon Lake Jeff Miller/Karen Spiegel, City of Corona Vacant/Robert Bernheimer, City of Indian Wells Frank West/Charles White, City of Moreno Valley Frank Hall/Harvey Sullivan, City of Norco Dick Kelly/Robert Spiegel, City of Palm Desert Ronald Oden/Ginny Foat, City of Palm Springs Ron Roberts/Jeff Comerchero, City of Temecula Bob Buster, County of Riverside, District I Roy Wilson, County of Riverside, District IV Marion Ashley, County of Riverside, District V *** STAFF *** Eric Haley, Executive Director Cathy Bechtel, Division Head, Planning *** AREAS OF RESPONSIBILITY *** State Transportation Improvement Program Regional Transportation Improvement Program New Corridors Intermodal Programs (Transit, Rail, Rideshare) Air Quality and Clean Fuels Regional Agencies, Regional Planning Intelligent Transportation System Planning and Programs Congestion Management Program The Committee welcomes comments. If you wish to provide comments to the Committee, please complete and submit a Testimony Card to the Clerk of the Board. RIVERSIDE COUNTY TRANSPORTATION COMMISSION PLANS AND PROGRAMS COMMITTEE www.rctc.org AGENDA* *Actions may be taken on any item listed ontheagenda 12:30 P.M. Monday, June 27, 2005 BOARD ROOM County of Riverside Administrative Center 4080 Lemon Street, First Floor, Riverside In compliance with the Americans with Disabilities Act and Government Code Section_ 54954.2, if you need special assistance to participate in a Committee meeting, please contact the Clerk of the Commission at (951) 787-7141. Notification of at least 48 hours prior to meeting time will assist staff in assuring that reasonable arrangements can be made to provide accessibility at the meeting. 1. CALL TO ORDER 2. ROLL CALL 3. PUBLIC COMMENTS 4. APPROVAL OF MINUTES 5. ADDITIONS/REVISIONS (The Committee may add an item to the Agenda after making a finding that there is a need to take immediate action on the item and that the item came to the attention of the Committee subsequent to the posting of the agenda. An action adding an item to the agenda requires 2/3 vote of the Committee. if there are less than 2/3 of the Committee members present, adding an item to the agenda requires a unanimous vote. Added items will be placed for discussion at the end of the agenda.) Plans and Programs Committee Agenda June 27, 2005 Page 2 6. FY 2005/06 ALLOCATION OF FUNDING FOR RIVERSIDE COUNTY TRANSIT SERVICES Pg. 1 Overview This item is for the Committee to: 1) Approve the FY 2005/06 Federal Transit Administration's Section 5307 and 5311 Program of Projects for Riverside County; 2) Conduct a public hearing at the July 13, 2005 Commission meeting on the proposed Program of Projects; 3) Direct staff to add projects into the Regional Transportation Improvement Plan; 4) Approve the FY 2005/06 Local Transportation Fund and State Transit Assistance fund allocations for transit; 5) Adopt Resolution No. 05-011, "Resolution of the Riverside County Transportation Commission to Allocate State Transit Assistance Funds," and 6) Forward to the Commission for final action. MEASURE "A" SPECIALIZED TRANSPORTATION PROGRAM - REQUEST FOR PROPOSAL: NON -EMERGENCY MEDICAL TRANSPORTATION Overview This item is for the Committee to: Pg. 16 1) Authorize staff to enter into a professionalservices agreement with ` A-M-M-A to 1) develop a Request for Proposal for Non -Emergency Medical Transportation services; 2) provide technical assistance to develop community -outreach opportunities; and 3) review existing Measure "A" specialized transportation programs; 2) . Allocate up to $20,000 in Western Riverside Measure "A" Specialized Transportation funds to cover A-M-NI-A's services; 3) Amend the Measure "A" Specialized Transit Budget to reflect the allocation of funds; 4) Authorize the Chairman, pursuant to Legal Counsel review, to execute Agreement No. 06-26-508 with A-M-M-A on behalf of the Commission, and 5) Forward to the Commission for final action. Plans and Programs Committee Agenda June 27, 2005 Page 3 8. AUTHORIZATION FOR DEVELOPMENT AND RELEASE OF A REQUEST FOR PROPOSAL FOR PUBLIC OUTREACH CONSULTANT SERVICES FOR THE PERRIS VALLEY LINE PROJECT Pg. 28 Overview This item is for the Committee to: 1) Authorize the development and release of a Request for Proposal for the purpose of conducting additional Public Outreach related to the Environmental Document for the Perris Valley Line Project, and 2) Forward to the Commission for final action. 9. FISCAL YEAR 2005/06 MEASURE "A" COMMUTER ASSISTANCE BUSPOOL SUBSIDY FUNDING CONTINUATION REQUESTS Overview This item is for the Committee to: Pg. 29 1) Authorize payment of $1,645/month per buspool for the period July 1, 2005 to June 30, 2006 to the existing Riverside, Moreno Valley, Corona and Mira Loma buspools; 2) Require subsidy recipients to meet monthly buspool reporting requirements as support documentation to receive payments, and 3) Forward to the Commission for final action. 10. COMMUTER RAIL PROGRAM UPDATE Overview This item is for the Committee to: Pg. 36 1) Receive and file the Commuter Rail Program Update asan information item, and 2) Forward to the Commission for final action. Plans and Programs Committee Agenda June 27, 2005 Page 4 11. APPROVAL OF RESOLUTION NO. 05-010, "A RESOLUTION OF THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AMENDING AND ADOPTING LOCAL GUIDELINES FOR IMPLEMENTING THE CALIFORNIA ENVIRONMENTAL QUALITY ACT" Pg. 55 Overview This item is for the Committee to: 1) Approve Resolution No. 05-010, "A Resolution of the Riverside County Transportation Commission Amending and Adopting Local Guidelines for Implementing the California Environmental Quality Act," and 2) Forward to the Commission for final action. 12. COMMISSIONERS/STAFF REPORT Overview This item provides the opportunity for the Commissioners and staff to report on attended and upcoming meetings/conferences and issues related to Commission activities. 13. ADJOURNMENT. The next Plans and Programs Committee meetingis scheduled to be held at 12:00 P.M., Monday, August 22, 2005, Board Chambers, 1st Floor, County Administrative Center, 4080 Lemon Street, Riverside. ATTENDANCE ROSTER F PLANS AND PROGRAMS COMMITTEE MEETING MONDAY, JUNE 27, 2005 - 12:30 P.M. NAME idrLsUN _ 6-; o k e 1 REPRESENTING �plo 6i3/7./ca rno,6E.0 ns'tiv el-) c-4 TELEPHONE OR E-MAIL .3Va.6,--b-.� cry -Gyyo 99 9/3 Jae C 7��- 323---E'2-.o a� MINUTES RIVERSIDE COUNTY TRANSPORTATION COMMISSION PLANS AND PROGRAMS COMMITTEE Monday, May 23, 2005 MINUTES 1. CALL TO ORDER The meeting of the Plans and Programs Committee was called to order by Vice -Chairman Daryl Busch at 12:03 p.m., in the Board Room at the County of Riverside Administrative Center, 4080 Lemon Street, First Floor, Riverside, California, 92501. 2. ROLL CALL Members/Alternates Present Marion Ashley Daryl Busch Bob Buster Percy L. Byrd Mary Craton Ginny Foat Frank Hall Dick Kelly Jeff Miller Shenna Moqeet Ron Roberts Frank West Members Absent Michael H. Wilson Roy Wilson 3. PUBLIC COMMENTS There were no requests from the public to speak. 4. APPROVAL OF MINUTES — April 25, 2005 M/S/C (Craton/Roberts) to approve the minutes. Plans and Programs Committee Minutes May 23, 2005 Page 2 5. ADDITIONS/REVISIONS Vice -Chairman Busch noted an addition to Agenda Item 7, "Proposed Metro/ink Budget for Fiscal Year 2005-2006". 6. RIVERSIDE TRANSIT AGENCY'S REQUEST ' TO REVISE FISCAL YEAR 2002-2003 AND FISCAL YEAR 2003-2004 LOCAL TRANSPORTATION FUND CLAIMS (LTF) FOR OPERATING FUND DEFICIT Theresia Trevino, Chief Financial Officer, reviewed the request to amend RTA's Short Range Transit Plan (SRTP) for FY 2002-03 and FY 2003-04 to reflect operating fund deficits so that LTF funds may be disbursed. M/S/C (Byrd/Hall) to: 1) Amend the Riverside Transit Agency's (RTA) Short Range Transit Plans for FY 2002-03 and FY 2003-.04 for funding of operating fund deficits in the amounts of $1,478,780 and $205,048, respectively, for a total of $1,683,828, pending approval by RTA's Board of Directors; 2) Disburse $1,683,828 in Local Transportation Funds (LTF) to the RTA from its allocated and unclaimed LTF reserves; and, 3) Forward to the Commission for final action. 7. PROPOSED METROLINK BUDGET FOR FISCAL YEAR 2005-2006 Stephanie Wiggins; Rail Department Manager, reviewed the FY 2005-2006 proposed Metrolink budget and the Commission's cost share for the service. At the request of Eric Haley, Executive Director, Stephanie Wiggins provided reasons for a high farebox recovery ratio for the 91 Line, which is primarily due to current cost allocation formulas. M/S/C (Foat/Ashley) to: 1) Adopt the preliminary FY 2005-06 Metrolink Operating and Capital Budget; Plans and Programs Committee Minutes May 23, 2005 Page 3 2) Allocate RCTC's funding commitment to the Southern California Regional Rail Authority (SCRRA) in an amount not to exceed $6,937,200 comprised of $4,,686,500 in Local Transportation Fund (LTF) funds for train operations and maintenance -of -way, and $2,250,700 for capital projects to be funded by $1,883,500 in FTA Section 5307 funds and $367,200 in LTF funds; and, 3) Forward to the Commission for final action. 8. PALO VERDE VALLEY — FISCAL YEAR 2005-2006 UNMET TRANSIT NEEDS HEARING AND ADOPTION OF RESOLUTION NO. 05-007; "RESOLUTION OF THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION ADOPTING A FINDING THAT THERE ARE NO UNMET TRANSIT NEEDS THAT ARE REASONABLE TO MEET IN THE PALO VERDE VALLEY AREA." Tanya Love, Program Manager, explained the Unmet Transit Needs Hearing process and reviewed the comments and testimony received at the hearing and staff responses. M/S/C (Miller/Byrd) to: 1) Make a finding that based upon a review of the requests for services received through the "Unmet Transit Needs Hearing" process, review of existing services and proposed improvements to the available services, there are no unmet transit needs which can be reasonably met in the Palo Verde Valley; 2) Reaffirm the Commission's definition of "Unmet Transit Needs" and "Reasonable to Meet" standards; 3) Adopt Resolution No. 05-007, "Resolution of the Riverside County Transportation Commission Adopting a Finding That There are No Unmet Transit Needs That are Reasonable to Meet in the Palo Verde Valley Area"; and, 4) Forward to the Commission for final action. 9. FISCAL YEARS 2005-2006 — FY 2007-2008 SHORT RANGE TRANSIT PLANS Tanya Love presented a summary of service highlights proposed in the Fiscal Years 2005-06 and 2006-07 Short Range Transit Plans. Plans and Programs Committee Minutes May 23, 2005 Page 4 M/S/C (Ashley/Miller) to: 1) Review and approve, in concept, the FY 2005-06 - FY 2007-08 Short Range Transit Plans for the cities of Banning, Beaumont (collectively Pass Transit System), Corona, Riverside, Palo Verde Valley Transit Agency, Riverside Transit Agency, SunLine Transit Agency and RCTC's Regional Rail program; 2) Review and approve for implementation the Riverside Transit Agency's Taxi Program Coordination/Transition Plan as part of RTA's overall service profile; and, 3) Forward to the Commission for final action. 10. FISCAL YEAR 2005-2006 MINIMUM FARE REVENUE RATIO FOR RIVERSIDE TRANSIT AGENCY AND SUNLINE TRANSIT AGENCY Tanya Love reviewed the FY 2005-06 minimum fare revenue to operating expense ratio for Riverside Transit Agency and SunLine Transit Agency, including the rules and regulations and methodology. M/S/C {Miller/Craton► to: 1) Reaffirm the methodology used to calculate the required farebox recovery ratio and approve the FY 2005-06 minimum fare revenue to operating expense ratio of 17.73% for Riverside Transit Agency and 17.22% for SunLine Transit Agency; and, 2► Forward to the Commission for final action. 11. REPROGRAMMING OF TRAFFIC CONGESTION RELIEF (TCR) PROGRAM FUNDS TO THE STATE ROUTE 91 EASTBOUND AUXILIARY LANE PROJECT` FROM STATE ROUTE 241 TO STATE ROUTE 71 Shirley Medina, Program Manager, reported on the request to reprogram TCR program funds to the SR 91 eastbound auxiliary lane project. Commissioner Jeff Miller expressed concern for the lane drops on the eastbound SR 91 at SR 71 and Serfas Club Drive and requested these issues be addressed prior to the completion of the subject project to prevent increased traffic impacts. Shirley Medina noted the issues expressed by Commissioner Miller and added that at a recent meeting regarding this project, it was discussed that SR 71 may not be the logical termini and alternatives farther east may need to be reviewed. Plans and Programs Committee Minutes May 23, 2005 Page 5 In response to Commissioner Ashley's request for the status of the east junction project, Eric Haley responded that action was taken by the Budget and Implementation Committee at its last meeting for funding as well as preparation and advertisement of a request for proposals to prepare final construction plans, specification and cost estimates. M/S/C (Miller/Ashley) to: 1) Approve the reprogramming of Traffic Congestion Relief (TCR) Program funds from the SR 91/Green River interchange/auxiliary lane and SR 71 /SR 91 connector project to the SR 91 eastbound auxiliary lane project from SR 241 to SR 71; 2) Authorize the Executive Director, pursuant to Legal Counsel review, to execute the required agreement or concurrence for transfer of TCR funds; and, 3) Forward to the Commission for final action. 12. APPROVAL OF AGREEMENT NO. 0.5-65-557, AMENDMENT NO. 1 TO AGREEMENT NO. 04-65-077, WITH RAHIMIAN MANAGEMENT AND CONSULTING, INC. AND AGREEMENT NO. 05-65-559, AMENDMENT NO. 2 TO THE AGREEMENT NO. 04-65-041, BETWEEN THE ORANGE COUNTY TRANSPORTATION AUTHORITY, RIVERSIDE COUNTY TRANSPORTATION COMMISSION, AND FOOTHILL/EASTERN TRANSPORTATION CORRIDOR AGENCY FOR THE RIVERSIDE COUNTY TO ORANGE COUNTY MAJOR INVESTMENT STUDY Cathy Bechtel, Division Head — Planning, provided a brief update on the Riverside County to Orange County Major Investment Study and reviewed the services being performed by Rahimian Management and Consulting, Inc., noting a higher than expected -number of meetings and coordination activities. In response to Commissioner Ron Roberts' question regarding oversight of the consultant, Cathy Bechtel responded that the consultant reports directly to RCTC and OCTA. In response to Commissioner Ashley's question, regarding the Metropolitian Water District's (MWD) action to cooperate with RCTC and OCTA on any possible tunnel option, Cathy Bechtel noted a good working relationship with MWD and expressed that a joint powers authority was necessary at this time, however, an opportunity to secure additional funds is an advantage. Plans and Programs Committee Minutes May 23, 2005 Page 6 M/S/C (Byrd/Miller) to: 1) Approve Agreement No. 05-65-557, Amendment No. 1 to Agreement No. 04-65-077, with Rahimian Management and Consulting, Inc. to increase the services budget by $120,000 to accommodate extra project management work; 2) Approve Agreement No. 05-65-559, Amendment No. 2 to the Agreement No. 04-65-041, between the Orange County Transportation Authority., Riverside County Transportation Commission, • and Foothill/Eastern Transportation Corridor Agency for the Riverside County to Orange County Major Investment Study; 3) Authorize the Chair, pursuant to Legal Counsel review, to execute the agreements on behalf of the Commission; and, 4) Forward to the Commission for final action. 13. APPROVAL OF AGREEMENT NO. 05-41-556 WITH SAN BERNARDINO ASSOCIATED GOVERNMENTS FOR FISCAL YEAR 2005-2006 COMMUTER ASSISTANCE PROGRAM Robert Yates, Program Manager, briefly reviewed the agreement with SANBAG for commuter and employer rideshare services for FY 2005-06. M/S/C (Hall/Roberts) to: 11 Approve Agreement No. 05-41-556 with the San Bernardino Associated Governments (SANBAG) as part of the Commission's continuing bi-county partnership with SANBAG to deliver commuter and employer rideshare services for FY 2005-06; . 2) Authorize the Chair, pursuant to Legal Counsel review, to execute the agreement on behalf of the Commission; and, 3) Forward to the Commission for final action. 14. COMMUTER RAIL PROGRAM UPDATE Stephanie Wiggins, Rail Department Manager, updated the Committee on the Commuter Rail program highlighting Metrolink Board action to revise its quality service pledge. Plans and Programs Committee Minutes May 23, 2005 Page 7 M/S/C (Miller/Craton) to: 1► Receive and file the Commuter Rail program update as an information item; and, 2) Forward to the Commission for final action_ 15. COMMISSIONERS / STAFF REPORT There were no comments from Commissioner or staff. 16. ADJOURNMENT There being no further business for consideration by the Plans and Programs Committee, the meeting adjourned at 1:00 p.m. Respectfully submitted, Jennifer Harmon Deputy Clerk of the Board AGENDA ITEM 6 RIVERSIDE COUNTY TRANSPORTATION COMMISSION DATE: June 27, 2005 TO: Plans and Programs Committee FROM: Tanya Love, Program Manager THROUGH: Cathy Bechtel, Division Head, Planning SUBJECT: FY 2005/06 Allocation of Funding for Riverside County Transit Services STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve the FY 2005/06 Federal Transit Administration's Section 5307 and 5311 Program of Projects for Riverside County; 2) Conduct a public hearing at the July 13, 2005 Commission meeting on the proposed Program of Projects; 3) Direct staff to add projects into the Regional Transportation Improvement Plan; 4) Approve the FY 2005/06 Local Transportation Fund and State Transit Assistance fund allocations for transit; 5) Adopt Resolution No. 05-011, "Resolution of the Riverside County Transportation Commission to Allocate State Transit Assistance Funds," and 6) Forward to the Commission for final action. BACKGROUND INFORMATION: At the June 2, 2005 Commission meeting, the FY 2005/06 — FY 2007/08 Short Range Transit Plans (SRTP► were approved. As previously reported the SRTPs cover the county's three apportionment areas and consist of plans for the cities of Banning, Beaumont (collectively Pass Transit System), Corona, Riverside, Palo Verde Valley Transit Agency, Riverside Transit Agency, SunLine Transit Agency, and RCTC's Regional Commuter Rail program. While the SRTPs outline the planned capital expenditures for a three year period, operating service levels and funding requests are only provided for year --one of the three-year plan. As the Transportation Planning Agency (TPA), RCTC is responsible for allocation of transit funds. In prior years, Commission staff submitted individual staff reports requesting funding allocations based on the various "funding type" which consists offederal, state and local funding sources: For FY 2005/06, staff thought it advantageousto combine the various requests for funding into one staff report in order to demonstrate the .overall financial commitment to fund transit services provided by Riverside County transit operators. The FY,. 2005/06 SRTP estimates that $113,144,753 in funding is required to support the operating and capital requests for the eight transit operators. The following chart provides an overview of the costs together with projected ridership, levels by apportionment area and transit operator: AGENCY/APPORTIONMENT AREA Operating City of Banning $1,101,476 City of Beaumont $1,057,000 City of Corona $1.689,000 Riverside Special Services $2 726 009 Riverside Transit Agency $42,073,089 Western County: Bus $48,646,574 Western County: Rail $23,958,933 WESTERN COUNTY: TOTAL $72,605,507 SunLine Transit Agency COACHELLA VALLEY: TOTAL $17,930,052 $17,930,052 Palo Verde Valley Transit Agency $757.900 PALO VERDE VALLEY: TOTAL $757,900 TOTAL: ALL APPORTIONMENT AREAS: $91,293,459 Capital Total Costs Ridership $106,200 $1,207,676 218.181 $21,000 $1,078,000 125,000 $1,168,000 $2,857,000 261,300 $570,000 $3,296,009 172,680 $8,737,027 $50,810.116 7,922,935 $10,602,227 $59,248,801 8,700,096 $3,019,468 $26,978,401 2,717,361 $13,621,695 $86,227,202 11,417,457 $7,506,359 $25,436,411 3,525,730 $7,506,359 $25,436,411 3,525,730 $723,240 $1,481,140 55,404 $723,240 $1,481,140 55,404 $21,851,294 $113,144,753 14,998,591 As identified in the Commission's Triennial Performance Audit, operating costs for FY 2000/01 through FY 2002/03 increased between 26% and 110% over the three year audit period. As shown on the following chart, operating costs for FY 2003/04 through FY 2005/06 continue to escalate while system -wide ridership has remained somewhat flat: Actual 8. Projected Ridership and Operating Costs $100.000.000 $90.000.000 $80.000,000 $70.000,000 $60,000.000 $50,000.000 $40,000,000 $30.000.000 $20,000,000 $10.000.000 $0 FY 2000/01 FY 2001/02 FY 2002/03 FY 2003/04 FY 2004/05 FY 2005/00 (Acttal) (Actual) (Actual) .(Actual') (Projected) (Projected) Passengers aO Operating Costs Linear (Operating Costs) IJ (Passengers) • Public Utilities Code Section 99244 requires the Commission to annually identify, analyze, and recommend potential productivity improvements for transit operators through the SRTP process. This process requires the transit operators to address recommendations made through the Triennial Performance Audit process as well as compliance with State RUC requirements for fare box recovery compliance and cost efficiency. Due to continued escalating operating costs, Commission staff has been working on revising the Productivity Improvement Program (PIP) which was adopted in 1998 to assist with compliance requirements. It is anticipated that over the next month or two, staff will continue its effort to seek reaffirmation of the PIP, which when fully implemented, will establish objective criteria for assessing productivity improvement opportunities including cost efficiencies. FY 2005/06 ALLOCATION OF FUNDS Federal Funding: Section 5307, Section 5309 and Section 5311 Section 5307 On an annual basis, the Federal Transit Administration (FTA) distributes federal operating and capital block grant funds to urbanized areas through its Section 5307 Program. There are four urbanized areas in Riverside County_ 1) Riverside/San Bernardino; 2) Hemet/San Jacinto; 3) Temecula/Murrieta; and 4) Indio/Cathedral City/Palm Springs. Prior to an operator submitting its Section 5307 grant application to FTA, the Commission must develop and approve a Program of Projects (POP) for each urbanized area and conduct a public hearing. Attachment 1 consists of the proposed Section 5307 POPs for Riverside County; they contain projects identified in the SRTPs. The draft POPs, if not amended through the public hearing process, will become final as presented and will be forwarded to the Southern California Association of Governments. The actual Section 5307 apportionments for FY 2005/06 will not be known until later this calendar year when final appropriations are made by Congress: The Programs were developed at the highest anticipated funding amount to allow the operators to proceed with their grant applications and to avoid delays associated with program amendments and additional paperwork should the actual apportionments come in lower than estimated. Balances, if any, will be carried over to subsequent fiscal years. Section 5309 The Section 5309 program provides capital assistance, on a discretionary basis, for new and replacement buses and related facilities. For FY 2005/06, the Riverside Transit Agency and SunLine Transit Agency have identified projects totaling $2,190,636 in Section 5309 discretionary funds. Prior to the operators accessing these funds, the projects must be included in an approved Regional Transportation Improvement Program. Section 5311 The 'Section 5311 Rural Transit Assistance Program available through the FTA` provides federal operating assistance funds for rural transit operators. These, funds are administered by Caltrans and the majority of the funds are passed through to . counties based on a population formula. The remaining funds, if sufficient to justify a call for projects, are awarded in a statewide discretionary program by Caltrans for rural capital projects and intercity bus programs. Transit operators in counties where formula funds are fully programmed submit projects for discretionary funding to Caltrans. In order for grants to be approved, the Commission must develop and approve a Section 5311 Program of Projects. This year's program was prepared using the FY 2004/05 funding level for transit operations. As with the Section 5307 program, the actual apportionments will not be known until later this calendar year when final appropriations are made by Congress. By programming at what may be a higher level of funding, the operators will be able to apply for maximum funding and avoid delays and additional work to amend programs and grants. Section 5311 Formula Program The proposed program allocates the estimated $289,348 in formula funds for Riverside County in FY 2005/06 to RTA at 61.7% and SunLine at 38.3%. The 61.7%/38.3% formula was approved by the Commission in 1987 and was based on the level of service each agency operated in the non -urbanized areas of the County. In 2002/03, Commission staff discussed the formula with staff from RTA and SunLine to determine if the formula was still applicable. Both agencies agreed that the formula should remain at the current percentage splits. 4 Following is the proposed FY 2005/06 Section 5311 Program: Section 5311 Formula Funds COUNTY — 100% RTA — 61.7% SunLine — 38.3% Federal Funds Available $289,348 $178,528 $110,820 Prior Year Carry Over (Apportioned/unallocated) $0 $6,541 $0 FY 2004/05 Estimated Carry Over $7,050 $4,350 $2,700 COUNTY WIDE TOTAL: $189,419 $113,520 Both RTA and SunLine identified the use of Section 5311 funds for operating during FY 2005/06. Should additional funds be identified, available funds will be carried over and available for programming in FY 2006/07. Discretionary Section 5311 Funds It is not known at this time whether Caltrans will release a call for projects in FY 2005/06 for discretionary rural transit funds. Currently, none , of our transit operators have planned for the use of Section 5311 discretionary capital funds. However, should Ca[trans release a call for projects, all transit operators will be contacted about the availability of funds and if they have a project, a request for an amendment to the program of projects will be submitted for the Commission's consideration. Transportation Development Act Funding The Transportation Development Act (TDA) provides two major sources of funding for public transportation. The first, the Local Transportation Fund (LTF), provides for a % cent of the 73/4% state retail sales tax collected in each- county. The State Board of Equalization returns the sales tax revenues to the County of Riverside where it is held until the Commission provides written allocation instructions for disbursement. For FY 2005/06, it is estimated that LTF revenue for transit services will be $53,331,012. State Transit Assistance (STA) funding is the second source of TDA funds. STA funds are generated from the statewide sales tax on motor vehicle fuel (gasoline and diesel). The STA funds are appropriated to the State Controller for allocation by formula to each TPA. RCTC is responsible for the allocation of these funds for Riverside County. The formula allocates 50% of the funds on the basis of the region's population compared to the State's population (STA 99313 Funds). The 5 remaining 50% is allocated according to the prior year proportion of the region's transit operator passenger fare and local support revenues (STA 99314 Funds). According to the State Controller's Office, the amount of STA funds projected to be received in Riverside County for FY 2005/06 is $3,891,704 ($3,370,999 is 99313 discretionary funds and $520, 705 is 99314 non -discretionary operator funds). Prior to approving the STA allocations, the Commission must adopt the. attached Resolution as specified in the Transportation Development Act Statutes, California Code of Regulations. In order for the public transit operators to claim LTF and/or STA funds for operating and capital purposes, the Commission must allocate funds to support the transit services and capital projects contained in the FY 2005/06. SRTP. The requested' allocations are consistent with the approved SRTPs and the funds are explicitly for the projects as stated in the approved plans. Attachment 2 outlines the specific operators' requested TDA allocations for FY 2005/06. Although the City of Beaumont's (Beaumont) FY 2005/06 - FY 2007/08 SRTP was approved, the Commission cannot allocate any TDA funding for FY 2005/06 pending the completion of Beaumont's FY 2003/04 financial audit. As stated in Public Utilities Code (PUC) 6664: "In accordance with PUC Code Section 99245, a report of a fiscal and compliance audit made by an independent auditor shall be submitted by each claimant within 180 days after the end of the fiscal ,year, except that the responsible entity, as defined in Section 6663, may grant an extension of up to 90 days as it deems necessary. No allocation shall be made to any claimant that is delinquent in its submission of a fiscal and compliance audit report." Upon completion of Beaumont's FY 2003/04 financial audit, Commission staff will request an allocation of TDA funds for FY 2005/06 based -on the estimated operating and capital costs identified in the SRTP. Staff recommends the approval of the TDA and FTA funds as presented. As in previous years, any modifications in fare box revenues, federal grants, Measure "A" funding, or carry over funds may require operators to revise their services to operate within the funding limitations. Financial Information Iln Fiscal Year Budget: N/A: LTF Yes: STA Year: 2005/06 Amount: $55,852,813 (LTF) $3,896,644 (STA) Source of Funds: Transportation Development Act: LTF & STA Budget Ad"ustment: No GLA No.: 601 62 86101 & 86102 241 62 86102 LTF operating and capital allocations STA capital allocations Fiscal Procedures Approved: \144,4 -,1404, Date: 6/27/05 Attachments: Resolution No. 05-011 Section 5307 Program of Projects LTF & STA spreadsheets 7 RESOLUTION NO. 05-011 A RESOLUTION OF THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION TO ALLOCATE STATE TRANSIT ASSISTANCE FUNDS WHEREAS, the Riverside County Transportation Commission is designated the regional entity responsible for the allocation of State Transit Assistance Funds within Riverside County; and WHEREAS, the Riverside County Transportation Commission has examined the Short Range Transit Plan and Transportation Improvement Program; and - WHEREAS, all proposed expenditures in Riverside County are in conformity with the Regional Transportation Plan; and WHEREAS, the level of passenger fares is sufficient for claimants to meet the fare revenue requirements of Public Utilities Code Sections 99268.2, 99268.3, 99268.4, 99268.5, and 99268.9, as applicable; and WHEREAS, the claimant is making full use of federal funds available under the Federal Transit Act; and WHEREAS, the sum of the claimant's allocations from the state transit assistance fund and from the local transportation fund does not exceed the amount the claimant is eligible to receive during the fiscal year; and WHEREAS, priority consideration has been given to claims to offset reductions in federal operating assistance and the unanticipated increase in the cost of fuel, to enhance existing public transportation services, and to meet high priority regional, countywide, or area -wide public -transportation needs; and WHEREAS, the public transit operators have made a reasonable effort to implement the productivity improvements recommended pursuant to Public Utilities Code Section 99244; and WHEREAS, the claimant is not precluded by any contract entered into on or after June 28, 1979, from employing part-time drivers or contracting with common carriers or persons operating under a franchise or license; and WHEREAS, operators are in full compliance with Section 18081.1 of the Vehicle Code, as required in Public Utilities Code Section 99251. 8 NOW, THEREFORE BE IT RESOLVED by the Riverside County Transportation Commission to allocate State Transit Assistance Funds for FY 2005/06 as detailed in Attachment 2. This resolution shall take effect immediately upon its passage. APPROVED AND ADOPTED this 13`" day of July, 2005. C. Robin Lowe, Chair Riverside County Transportation Commission ATTEST: Naty Kopenhaver, Clerk of the Board Riverside County Transportation Commission 9 r I RIVERSIDE COUNTY TRANSPORTATION COMMISSION PROGRAM OF PROJECTS FTA SECTION 5307 FY 2005/06 URBANIZED AREA: HEMET/SAN JACINTO RECIPIENT: RIVERSIDE TRANSIT AGENCY Total Apportionment (projected) Apportionment Carryover Transfer of Funds (CMAQ) Total Funds Available Less Current Requests Balance (Projected) NUMBER PROGRAM OF PROJECTS 1) TOTAL`: Operating assistance (RIV 050536) Approved: 7/13/05 (Pending Commission Action) TOTAL AMOUNT $ 34,947,570 $ 34,947,570 $1,568,561 $71,488 $0 $1,640,049 $1,640,049 $0 FEDERAL SHARE ATTACHMENT Page 1 of 4 PROJECT DESIGNATED TYPE RECIPIENT $ 1,640,049 Operating $ 1,640,049 Caltrans Hemet/San Jacinto FY 2005/06 6/22/2005 10 ATTACHMENT? Page 2 of 4 RIVERSIDE COUNTY TRANSPORTATION COMMISSION PROGRAM OF PROJECTS FTA SECTION 5307 FY 2005/06 URBANIZED AREA: INDIO/CATHEDRAL CITY/PALM SPRINGS RECIPIENT: SUNLINE TRANSIT AGENCY Total Apportionment (Projected) Apportionment $2,916,283 Carryover-$833,657 Transfer of Funds (CMAQ) $o Total Funds Available $2,082,626 Less Current Requests $2,082,626 Balance (Projected) go TOTAL FEDERAL PROJECT DESIGNATED NUMBER PROGRAM OF PROJECTS AMOUNT SHARE TYPE RECIPIENT 1) Capitalized preventive $1,000,000 $800,000 Capital SCAG maintenance (RIV 041042) 2) Fixed route buses - 16 $6,505,655 $776,626 Capital SCAG replacement (RIV 050546) 3) Varner Road property - $102,000 $80,837 Capital SCAG installment payment (RIV 010502) 4) Transit enhancements: Bus $35,000 $29,163 ' Capital SCAG stop amenities (RIV 050547) 5) TOTAL: DAR vehicles - 9 replacement (RIV 050548) $495,000 $396,000 Capital . SCAG $8,137,655 $2,082,626 Approved: 7/13/05 (Pending Commission Action) Indio/Cathedral City/Palm Springs UZA FY 2005/06 6/22/2005 • • 11 • RIVERSIDE COUNTY TRANSPORTATION COMMISSION PROGRAM OF PROJECTS" FTA SECTION 5307 FY 2005/06 URBANIZED AREA: RIVERSIDE/SAN BERNARDINO Total Apportionment (Projected) Bus Rail Apportionment $6,178,364 $4,762,135 Carryover $1,345,321 $10,140,159 Transfer of Funds (CMAO) $0 $0 Deobligate $374,000 - RIV 010511 - Corona: 3 $374,000 $0 Expansion Fixed Route Vehicles Total Funds Available $7,897,685 $14,902,294 Less Current Requests $7,490,156 $2,197,021 Balance $407,529 $12,705,273 Sub Area Allocation Corona, City of $831,400 Riverside, City of $549,000 Riverside Transit Agency $6,109,756 RCTC's Commuter Rail $2,197,021 ATTACHMENT Page 3 of 4 FEDERAL PROJECT DESIGNATED NUMBER PROGRAM OF PROJECTS TOTAL AMOUNT SHARE TYPE RECIPIENT Corona, City of 1) Preventive maintenance (RIV 041003) $ 174,000 $ 139,000 Capital SCAG 2) Bus fixed route (3) replacement vehicles (RIV 050513) $ 600,000 $ 498,000 Capital SCAG 3) DAR (2) replacement vehicles (RIV 050514) $ 140,000 $ 116,000 Capital SCAG 4) Security cameras for 14 vehicles (RIV 050515) $ 98,000 $ 78,400 Capital SCAG Riverside, City. of 5) Preventive maintenance (RIV 041007) $ 100,000 $ 80,000 Capital SCAG 6) DAR (6) replacement vehicles (RIV 050518) $ 450,000 $ 373,000 Capital 7) Support vehicle - low floor minivan (RIV 050519) $ 70,000 $ 56,000 Capital SCAG 8) Facility improvements (RIV 050520) $ 50,000 $ 40,000 Capital SCAG Riverside Transit Agency 9) Preventive maintenance (RIV 041027) $ 4,127,225 $ 3,301,780 Capital "SCAG 10) Capital cost of contracting (RIV 050537) $ 2,585,695 $ 494,486 Capital SCAG ` , 11) COP -debt service (RIV 050538) $ 2,063,375 $ 1,650,700 Capital SCAG 12) Software and upgrades (RIV 050539) $ 718,487 $ 574,790 Capital SCAG 13) Transit enhancement - bus stop amenities (RIV 050554) $ 110,000 $ 88,000 Capital SCAG RCTC's Commuter Rail - 14) Rehab/renovation - RCTC's share (RIV 041034) $ 1,198,550 $ 1,198,550 Capital SCAG RCTC's share of OCTA's FY 06 rehab and renovation 15) (RIV 050525) $ 1,052,136 $ 841,709 Capital SCAG 16) Electronic passenger information system (RIV 050525) $ 156,762 $ 156,762 Capital SCAG TOTAL: $ 13,694,230 $ 9,687,177 .Approved: 7/13/05 (Pending Commission Action) Riv-San UZA FY 2005/06 6/22/2005 12 ATTACHMENT 1 Page 4 of 4 RIVERSIDE COUNTY TRANSPORTATION COMMISSION PROGRAM OF PROJECTS FTA SECTION 5307 FY 2005/06 URBANIZED AREA: TEMECULA/MURRIETA RECIPIENT: RIVERSIDE TRANSIT AGENCY Total Apportionment (projected) Apportionment Carryover Transfer of Funds (CMAQ) Total Funds Available Less Current Requests Balance (Projected) NUMBER PROGRAM OF PROJECTS 1) Capital cost of contracting (RIV 050537) 2) Transit enhancements: BRT (RIV 050556) TOTAL: Approved: 7/13/05 (Pending Commission Action) $2,034,668 -$460,598 $0 $1,574,070 $1,574,070 $0 TOTAL FEDERAL PROJECT DESIGNATED AMOUNT SHARE TYPE RECIPIENT $2,585,695 $1,553,070 Capital SCAG $400,000 $21,000 $2,985,695 $1,574,070 Temecula/Murrieta UZA FY 2005/06 6/22/2005 • 13 • RIVERSIDE COUNTY TRANSPORTATION COMMISSION -TRANSPORTATION DEVELOPMENT ACT LOCAL TRANSPORTATION FUND AND STATE TRANSIT ASSISTANCE FUNDS FY 2005/06 TRANSIT ALLOCATIONS LOCAL TRANSPORTATION FUNDS: AGENCY/APPORTIONMENT AREA City of Banning City of Corona Riverside Special Services Riverside Transit Agency WESTERN RIVERSIDE: BUS TOTAL RCTC's Commuter Rail (Metrolink) WESTERN RIVERSIDE: COMMUTER RAIL TOTAL SunLine Transit Agency COACHELLA VALLEY: TOTAL Palo Verde Valley Transit Agency PALO VERDE VALLEY: TOTAL ESTIMATED OPERATING ESTIMATED ESTIMATED ESTIMATED NON COSTS CAPITAL COSTS TOTAL COSTS LTF REVENUES ESTIMATED • RECOMMENDED LTF CARRY ADDITIONAL LTF OVER FUNDS TRANSIT (1) B,91, ALLOCATION$ $ 1,101,478 $ 106,200 $ 1,207,676 $ 208,032 $ 205,522. 1,689,000 1,168,000 2,857,000 1,409,800 329,691 2,726,009 570,000 3,296,009 922,600 42,073,089 8,737,027 50,810,116 22,673,324 47,589,574 10,581,227 58,170,801 25,213,756 6,295,403 3,019,468 9,314,871 2,197,021 6,295,403 3,019,468 9,314,871 2,197,021 17,930,052 7,506,359 25,436,411 10,382,518 17,930,052 7,506,359 25,436,411 10,382,518 757,900 , 723,240 1,481,140 757,115 757,900 723,240 1,481,140 757,115 412,599 (2) 947,812 - (3) $ 794,122 1,117,509 2,373,409 27,724,193 32,009,233 r 7,117,850 7,117,850 15,053,893 15,053,893 724,025 724,025 COUNTY WIDE TOTAL $ 72,572,929 $ 21,830,294 $ 94,403,223 $ 38,550,410 $ 947,812 $ 54,905,001 Reference (1) Estimated LTF carry over funds will be Included in FY 2005/06 Claim. (2) $412,599 In LTF funds to be paid out of RTA's BRT Reserve. (3) Commuter Rail's operating costs are estimated at $23,958,933 per Table 3 of SRTP; of that amount, $6,295,403 Is RCTC's share of operating costs. Note No allocation requested for the City of Beaumont pending completion of FY 2003/04 financial audit. ATTACHM1P2 Page 1 of 2 LTF AMOUNTS AVAILABLE TO BE CLAIMED IN FY 2005/06 $ 999,644 1,447,200 2,373,409 28,136,792 7,117, 850 15,053,893 724,025 $ 55,852,813 8/22/2005 10:28 AM FY 2005/06 LTF STA Allocations 14 RIVERSIDE COUNTY TRANSPORTATION COMMISSION TRANSPORTATION DEVELOPMENT ACT LOCAL TRANSPORTATION FUND AND STATE TRANSIT ASSISTANCE FUNDS FY 2005/06 TRANSIT ALLOCATIONS STATE TRANSIT ASSISTANCE FUNDS: AGENCY/APPORTIONMENT AREA City of Banning City of Corona Riverside Special Services Riverside Transit Agency WESTERN RIVERSIDE: BUS TOTAL RCTC's Commuter Rail (Metrolink) WESTERN -RIVERSIDE: COMMUTER RAIL TOTAL SunLine Transit Agency COACHELLA VALLEY: TOTAL Palo Verde Valley Transit Agency PALO VERDE VALLEY: TOTAL ESTIMATED STA CAPITAL COSTS $ 64,708 298,600 101,000 2,316,931 2,781,239 1,022,165 1,022,165 93,240 93,24,0 ESTIMATED STA CARRY OVER FUNDS (1) 14,687 2,896 4,068 21,651 RECOMMENDED ADDITIONAL STA TRANSIT ALLOCATIONS $50,021 295,704 • 96,932 2,316,931 - 2,759,588 1,022,165 1,022,165 93,240 93,240 COUNTY WIDE TOTAL $ 3,896,644 $ 21,651 $ 3,874,993 Reference (1) Estimated STA carry over funds will be included in FY 2005/06 Claim. Note No allocation requested for the City of Beaumont pending completion of FY 2003/04 financial audit. STA AMOUNTS AVAILABLE TO BE CLAIMED IN FY 2005/06 $ 64,708 298,600 101,000 2,316,931 1,022,165 93,240 $ 3,896,644 ATTACHMENT 2 Page 2 of 2 AGENDA ITEM 7 RIVERS/DE COUNTY TRANSPORTATION COMMISSION DATE: June 27, 2005 TO: Plans and Programs Committee FROM: Tanya Love, Program Manager THROUGH: Cathy Bechtel, Division Head, Planning SUBJECT Measure "A" Specialized Transportation Program - Request for Proposal: Non -Emergency Medical Transportation STAFF RECOMMENDATION: This item is for the Committee to: 1) Authorize staff to enter into a professional services agreement with A-M-M-A to 1) develop a Request for Proposal for Non -Emergency Medical Transportation services; 2) provide technical assistance to develop community -outreach opportunities; and 3) review existing Measure "A" specialized transportation programs; 2) Allocate up to $20,000 in Western Riverside Measure "A" Specialized Transportation funds to cover A-M-M-A's services; 3) Amend the Measure "A" Specialized Transit Budget to reflect the allocation of funds; 4) Authorize the Chairman, pursuant to Legal Counsel review, to execute Agreement No. 06-26-508 with A-M-M-A on behalf of the Commission, and 5) Forward to the Commission for final action. BACKGROUND INFORMATION: Staff is seeking approval to develop a Request for Proposal (RFP) for the western, Riverside County Measure "A" Specialized Transportation program for the provision of non -emergency medical transportation services (NEMT). If approved, staff is proposing that the RFP include, but not be limited to, the provision of non - emergency medical transportation for: 1) Medical appointments to veterans' administration facilities; 2) Inter -regional transportation for medical appointments; and 3) Dialysis, chemotherapy and/or radiation medical treatments. 16 The RFP_ would be in addition to the two-year call for projects that was conducted in FY 2003/04 for provision of specialized transportation services during FY. 2004/05 and FY 2005/06. Attachment 1 is a listing of specialized transit providers, currently receiving Measure "A" Specialized Transportation funding. If staff's request is approved to develop an RFP, the NEMT programs would be in addition to the current specialized transit services provided. In all likelihood, some of the existing Measure "A" grant recipients may submit a proposal to provide NEMT services. The NEMT services would be designed for senior citizens, persons with disabilities and the truly needy who need specialized transportation services over and above what the public transit operators can provide. The RFP would be developed to seek services designed to meet the in-between need for those passengers too frail to use traditional public transit yet not requiring expensive ambulance transport. Professional Services Agreement To assist with the development of the RFP, Commission staff is requesting approval to enter into a professional services agreement with A-M-M-A, the transit planning consulting firm responsible for managing the recently completed Non- Emergency Medical Transportation study on behalf of RCTC and the San Bernardino Associated . Governments (which acted as the lead agency). A-M-M-A has a long-term consultant -contract relationship with SANBAG on matters of specialized transit, staffing their citizens' advisory committee and is responsible for various service quality, service design and evaluation efforts since the early. 1990's. A-M=M-A was also the firm responsible for the specialized transit study conducted during 1999 that helped to give form to the current Measure "A" Specialized Transit Program.A-M=M-A has provided related consultant assistance throughout Southern California; a client list and summary of A-M-M-A's qualifications is included as Attachment 2.- In addition to providing assistance in developing the RFP; A-M-M-A's professional services are needed to provide technical assistance on the following tasks: 1) Developing community -outreach opportunities to further partnerships between specialized transit providers and health care providers that encourage innovative solutions to non -emergency medical transportation; and 2) Review existing Measure "A" specialized transportation programs to identify basic service effectiveness issues and to identify opportunities for addressing NEMT needs. 17 Non -Emergency Medical Transportation Study The NEMT study resulted in a collaborative effort between SANBAG, RCTC, several health care management systems as well as public transit providers. Attachment 3 provides an overview of the study. An overall finding of the study was that San Bernardino Valley was identified as the area with the greatest density of healthcare facilities. Further, the need to significantly improve inter -regional connectivity to the healthcare facilities was identified. Non -emergency medical transportation is a difficult issue for consumers in regions like Riverside and San Bernardino counties, with low -density populations in the urbanized areas and great rural expanses. Medically -related transportation needs surface routinely at public meetings, however, reports are usually anecdotal, and/or single individual stories and as such cannot be readily addressed by public transit which must plan for mass transit needs. Improving the linkages between transportation and health care providers has long been a concern of transportation providers and planners. As stated in the Winter 2004/05 edition of Community Transportation: "We continue to be alarmed that too many Americans have compromised their health due to the lack of a simple ride to the doctor." The Inland Empire continues to be one of the fastest growing areas in California. Some of the trends impacting non -emergency medical transportation in Western Riverside may include our aging population as well as increased reliance on outpatient medical care. As a result, the need to improve transportation access to health care services continues to increase. Background of Measure "A" Specialized Transportation Funding The current Measure "A" half -cent sales tax identifies 5% of the annual revenues for implementation of specialized transportation programs. In -the western county, Commission policy apportions 2.5% of these funds for the Commuter Assistance Program and the remaining 2.5% for the Specialized Transit program, which benefits seniors, persons with disabilities and the truly needy. The Commission has had a long-time commitment to meeting the special transit needs of seniors and persons with disabilities through its specialized transit grant program. In addition to traditional public dial -a -ride services, the Commission has granted funds to non-profit agencies to provide transit assistance in hard to serve rural areas for inter -community travel, and for riders having very special transit needs. In addition, in October 2003, a taxi demonstration program was developed and implemented utilizing Measure "A" specialized transit funding. Due to the success of the taxi demonstration program, the Riverside Transit Agency has 18 included the use of taxi vehicles in its FY 2005/06 service profile. The specialized transit programs have been successful over the years in providing improved transit access for western county residents. Financial Information In Fiscal Year Budget: No Year: 2005/06 Amount: S20,000 Source of Funds: Measure "A" Specialized Transit Budget Adjustment: Yes GLA No.: 225-26-65520 Fiscal Procedures Approved: \1 ,,,„ Date: 6/27/05 Attachments: Measure "A" Recipient Project List A-M-M-A Qualifications Overview of NEMT Study 19 ® City of Calimesa ATTACHMENT1 RIVERSIDE COUNTY TRANSPORTATION COMMISSION MEASURE "A" SPECIALIZED TRANSIT PROGRAM FY 2004/05 AND FY 2005/06 PROJECTS APPROVED FOR FUNDING: Funding Approved Applicant Proposed Services FY 2004/05 FY 2005/06 Total Blindness Support Services Fixed route travel training to $ 62,465 $ 65,342 $ 127,807 blind/visually impaired/disabled western Riverside county residents Beaumont Adult School Transportation for low-income $ 45,977 $ 52,982 $ 98,959 families with small children to attend the Even Start Family Literacy Program Care A -Van Transit Inc. Specialized transportation $ 195,500 $ 210,000 $ 405,500 1 services (primarily within Hemet City limits) to seniors, disabled and low income population: Care Connexxus, Inc. Specialized transportation $ 130,000 $ 130,000 $ 260,000 services for participants in Adult Day Care programs. Specialized transportation $ 60,000 — $ 60,000' services for seniors, disabled and low income population for medical, nutrition, shopping, etc. City of Norco Specialized transportation $ 17,112 $ 17,843 $ 34,955 services for elderly and disabled population for medical, nutrition, entertainment and shopping. Friends of Moreno Valley Specialized transportation - $ 44,800 $ 46,880 $ 91,680 services for seniors, disabled and low income population for medical, nutrition, shopping, etc. Inland AIDS Project Specialized transportation $ 89,000 $ 89,000 $ 178,000 services for persons with HIV/AIDS to medical, dental, -social service and other health related appointments. 6/22/2005 FY 2004/05 FY 2005/06 Specialized Transit Measure A" Call for Projects 20 Partnership to Preserve Program provides incentives to $ 304,973 $ 290,698 $ 595,671 Independent Living for Seniors encourage volunteer drivers to and Persons with Disabilities transport frail seniors and persons with disabilities that otherwise would be home bound and unable to access health services or provide for their daily needs_ Program also provides information and referral services. Riverside County Office of Mobility -training for students $ 4,255 $ 4,255 $ 8,510 Education* who have disabilities and/or identified as "at -risk". Once completed, students will be able to utilize fixed route bus service. Funds will be used to purchase bus tickets/passes. *CONTINGENCY FUNDS $ 4,255 $ 4,255 $ 8,510 Volunteer Center of Riverside Distribution of bus tickets and $ 88,360 $ 91,010 $ 179,370 County passes through various social service agencies. Senior, disabled and truly needy clients comprise the program's target population. TOTAL FUNDS REQUESTED/APPROVED FOR FUNDING: $ 1,046,697 $ 1,002,265 $ 2,048,962 6/22/2005 FY 2004/05 FY 2005/06 Specialized Transit Measure "A" CaU for Projects • 21 ATTACHMENT 2 A-MENNINGER-MAYEDA-ALTERNATIVE A-M-M-A QUALIFICATIONS Introduction to A-M-M-A A-M-M-A, A Menninger Mayeda Alternative, was established in 1987 as a transportation planning firm with developed expertise in community -level public transit services and a focus on small urban, rural public and specialized transit. A-M=M-A has promoted continuing transportation coordination in Southern California, including supporting the implementation of selected coordination and public outreach efforts in the county of San Bernardino over the past decade. A-M-M-A has also designed various computer tools, including several inventories and databases to support improved management or to 'facilitate on -going planning for small transit systems. A-M-M-A has, since,1987, provided consulting services to clients who represent the full gamut of organizations involved with public transit. Largely, but not exclusively in Southern California, these include regional planning agencies, counties, municipalities and not -for -profit agencies, as well as joint powers authorities and state level agencies. A-M-M A Principals A-M-M-A consolidates and builds upon the transit background, human services policy analysis and quantitative skills of its two principals, Tadashi A. Mayeda, with his hard science research background and Heather Menninger-Mayeda, a transit planner. Now as sole proprietor, Heather Menninger-Mayeda is trained in transportation planning, has worked on community -level and specialized transportation issues for almost twenty years in settings throughout Southern California, at the California state level and preceded by earlier years in Federal policy planning. A-M-M-A represents skills in transit and transportation policy planning, institutional analysis, community needs assessment and public participation outreach, with tested experience in project design and implementation. A-M-M-A utilizes skilled, respected associates with complimenting areas of expertise and works routinely with student interns from California Polytechnic University at Pomona, Urban and Regional Planning Department. Client Agencies The A-M-M-A client list includes the following — ♦ Federal agency: Transit Cooperative Research Program, Transportation Research Board of the National Academy of the Sciences. ♦ regional planning agencies: San Diego Associated Governments, Los Angeles County Metropolitan Transportation Authority, San Bernardino Associated Governments, Orange County Transportation Authority, Riverside County Transportation Commission, Southern California Association of Governments, the Regional Public Transportation Authority of Phoenix, Arizona,, and the County of San Diego. • state agencies: State of California - Department of Developmental Services; State of California - Department of Insurance: ♦ transit agencies: Omnitrans, Victor Valley Transit Authority, Mountain Area Regional Transit Authority, Morongo Basin Transit Authority (San Bernardino County, CA.); Riverside Transit Agency; SunLine Transit Agency (Riverside County, CA.); Norwalk Transit Agency, Santa. 22 Monica Municipal Bus Lines (Los Angeles County, CA); Orange County Transportation Authority (Orange County, CA.); South Coast Area Transit (Ventura County, CA.). ♦ cities: Los Angeles, Huntington Beach, Rancho Mirage, Santa Monica, Pasadena, Mission Viejo, Baldwin Park, La Canada Flintridge, Glendale, Whittier, Downey, Needles, Barstow, Long Beach; Phoenix, Arizona. ♦ social service and not -for -profit agencies: The California Endowment, San Diego County Aging and Independence Services; Blindness Support Services Inc. of Riverside; Los Angeles County INFOLINE, San Berardino County Office on Aging; Developmental Disabilities Center of Orange County, Frank D. Lanterman Regional Center, . Sonomo Developmental Center, Transportation Specialists, Inc.; Ontario/Pomona Association of Retarded Citizens. Types of Technical Studies The majority of A-M-M-A projects -focus on quantitative, data collection activities that provide a framework to and support for subsequent project recommendations: The firm's principals and associates work to: • ensure the validity of survey instruments; • secure the greatest degree of reliability to data collection efforts; • develop recommendations strongly grounded in data findings; • provide technical assistance that builds upon study recommendations. In addition to multiple data collection efforts, A-M-M-A projects have included development and maintenance, of agency inventories (AB 120 and other transit -oriented listings), transit needs assessments, 'development of transit policies and procedures, telecommuting needs assessment, transit coordination studies, fixed -route and paratransit operations analyses, transit performance measurement and assessment, as well as transit operations management. Technical' Assistance Roles A-M-M-A provides continuing planning assistance: ♦ Computer applications: A-M-M-A develops various computer applications around individual client needs. • Grant preparation/ grant development: A-M-M-A assists transit agencies in the preparation of special grants, including earmarked discretionary Federal Transit Administration grants and Dept. of Labor Welfare -to -Work grants. ♦ Americans with Disabilities Act technical assistance: In relation to the Americans with Disabilities Act, A-M-M-A principals have since 1990 provided continuing technical assistance to rural and small urban operators. ♦ Other transit planning technical assistance: For several clients; A-M-M-A provides continuing policy analysis and technical assistance related to institutional issues, long-range transit and specialized transportation planning. . Certifications and Insurance Levels A-M-M-A is certified as a small business and disadvantaged business enterprise by the State of California, Department of Transportation and by other regional entities. A-M-M-A holds a general liability insurance policy with Hartford Insurance with.a general aggregate coverage level of $2 million, $l million in owned and non - owned automobile liability insurance and employee workman's compensation insurance at required levels. 23 HEATHER MENN1NGER-MAYEDA EDUCATION California Sate Polytechnic University at Pomona, California Master's in Urban and Regional Planning - June 2002 Brandeis University, Waltham, Massachusetts Florence Heller School of Social Welfare: Master's Management of Human Services — 1981 Hampshire College, Amherst, Massachusetts American Literature and Philosophy Major Bachelor of Arts — 1977 PROFESSIONAL EXPERIENCE A-M-M-A [A Menninger Mayeda Alternative] Claremont; CA (1987 - present) Principal. Partnership originally formed to bring professional evaluation and problem solving resources, skills and expertise to analysis of public transportation services. Now sole proprietor with lead responsibilities, including project management, in the following projects. Rural and small urban transit innovations — Transportation Research Board's Transit Cooperative Research Program [A-21]. Fixed -route transit and paratransit planning - SCAG Southeast Gateway Cities, Los Angeles DOT/Los Angeles County MTA, Phoenix, AZ., Riverside Transit Agency, Riverside County Transportation Commission, Cities of Torrance, Huntington Beach, Pasadena, Santa Monica, Needles, Downey, La Canada Flintridge, La Crescents_ Public outreach and coordination councils — San Bernardino County's Public and Specialized Transportation Advisory and Coordination Council (1990 to present); City of Downey Citizens' Ad Hoc Transit Committee; County of Orange Public Health Department's Tobacco Revenue Settlement Program; Gateway Cities Council of Governments [Los Angeles Co.]. Senior transportation planning studies — County of Orange, San Diego County, San Diego Association of Governments, City of Huntington Beach, Western Riverside County. Coordination studies -- County of San Bernardino, Riverside County Transportation Commission, San Bernardino Associated Governments, Riverside County's SunLine Transit, Los Angeles County Transportation Authority UNFOLINE]. Americans with Disabilities Act planning and service monitoring -- Omnitrans, Victor Valley Transit Authority, City of Barstow, Mountains Area Regional Transit Authority, City of Downey, City of Rancho Mirage, Ventura County's SCAT. Federal grants preparation — City of Downey,,Morongo Basin Transit Authority, Omnitrans. . Transitperformance measures, monitoring, reporting - San Bernardino Associated Governments, Orange County Transportation Authority, Southern California Association of Governments, Barstow. Performance assessment, management and operations evaluation — Omnitrans, Cities of Santa Monica, Downey, Pasadena, Glendale, Whittier, Rancho Mirage, Barstow, Morongo Basin Transit Authority. Telecommute needs assessment -- City of Mission Viejo. Frank D. Lanterman Regional Center, Los Angeles, CA (83 87) Transportation Project Director, Independent Contractor. Multi -regional center project to manage the client $10 million transportation services of seven Los Angeles basin regional centers. Planning &) valuation Div., California Dept. of Developmental Services, Sacramento, CA (81-82) Project Director. Project management of a Calttans-funded planning grant to increase the cost effectiveness and efficiency of transportation purchased by the 21 Regional Centers across California_ 24 Heather Menninger-Mayeda, page two Health Care Financing Administration, Federal Dept. of Health and Human Services, Region I, Boston, MA (9/80-7/81); Headquarters, Baltimore, MD. (1980) Intern/ Special Assistant to the Bureau Chief. Preparation of decertification packages to terminate two State Medicare/Medicaid institutions; certification analyses and application of statutory authority. Massachusetts Department of Mental Health, Boston, MA (19 — `80) Management Consultant. Cost and program evaluation of the community residential care systems. New England Rehabilitation Hospital, Woburn, MA C77 — `80) Program Coordinator. Grant to provide rehabilitation training to long term care probiders. PROFF S4IONAL AFFILIATIONS American Planning Association (since `98). California Association for Coordinated Transportation [CALACT] (since 1991). Community Transportation Association of America (since `95). Los Angeles Philharmonic Foothill Affiliate Committee (since `95). Los Angeles County Metropolitan Transportation Authority, Local Transit Systems Subcommittee (` 94-`98). Crippled Childrens' Society of Southern California, Board of Directors (`92298). Los Angeles County Transportation Commission, Paratransit Operations Subcommittee C84-`93). Women's Transportation Seminal- (`89-95). Casa Colina Rehabilitation Hospital, Adult Day Care Board C92294). PUBLICATIONS AND PRESENTATIONS Transportation Research Record, Journal of the Transportation • Research Board of the National Academies. "ADA Demand Forecasting for Orange County Transportation Authority's ACCESS Program". H. Menninger-Mayeda, P. Berger, D. Berger, B. McCormick, D. Boyle. No. 1884, October 2004, pp. 55. — 64. . Evaluation of Six San Diego County Senior Transportation Programs: Transit Planning for the Graying of America, Master's Degree Thesis, Urban and Regional Planning Dept, Cal Poly Pomona, June 2002. TCRP Report 70: Guidebook for Change and Innovation at Rural and Small Urban Transit Systems. KFH Group and A-M-M-A. Transportation Research Board, National Academy Press, Washington DC, 2001. Presentation at 1414 National Rural Public and Intercity Bus Transportation Conference, "Status Report on TCRP A-21— Innovation in Rural and Small Urban Transit'; Lake Tahoe, CA. Nov: 14, 2000. Presentation at the Aging Summit — Senior Issues into the Next Century: Sponsored by the County of San Diego, Aging and Independence Services. "Senior Mobility and Senior Transit Issues in San Diego County", San Diego, CA, February 24, , 2000. - Workshop Proceedings on Transportation and the Elderly: San. Bernardino and Riverside Counties, ; Ontario, CA., February 14,1995,15 pages. Presentation at the American Association of Homes for the Aging. "Transportation Services to the Rural Elderly, San Diego, CA., October 22, 1993. Presentation at the Transportation Research Board Conference: "Transit Professionals and •Consumers Jointly Developing Service Guidelines", Phoenix, AZ, May 1993. "Transportation Implications of Supported Employment Programs", Menninger, H., Mayeda T. California Regional Centers Journal, photocopy 23 pages, July 1988. "The Sacramento Mobility Training Project: Early Results", Starks, J., Simpson, C., Menninger, H Transportation Research Record #231, pp. 630-638, May 1985. "Chapter 9. Transportation", Menninger, H. in Mental Retardation and Developmental Disabilities, Volume 13. Wortis, J. Plenum Press, New York, pp. 171-206,1984. Presentation at the American Association of Mental Deficiency Annual Conference_ "Transportation Problems and Solutions for Riders With Developmental Disabilities". Dallas, TX., May 1983. 25 Health Access in San Bernardino and Riverside Counties: Non -Emergency Medical Transportation (NEMT) Needs and Resources Cabrans/ Federal Transit Administration S. 5313 Study of Statewide Planning Significance Winter 2003 to Winter 2005 i Proiect Management Team: Caltrans, Southern California Association of Governments, San Bernardino Associated Governements, Riverside County Transportation Commission, Inland Empire Health Plan, Kaiser Permanente, Molina Health Care, Health Net, Community Hospital of San Bernardino Consultant Team: Judith Norman — Transportation Consultant (JNTC) lin association with O'Melia Consulting Civic Technologies, Inc. David Raphael- Medical Transportation Consulting Medical Transportation Management, Inc. UCLA Center for Health Policy Research The Fairfax Research Group Proiect Development Team: 25+ health care, public transit agencies and community based organizations in Riverside and San Bernardino Counties' Inland Empire Overall Project Goal: To identify solutions to non -emergency medical transportation in these two expansive counties, through a regional planning study, by rigorously documenting issues and devising solutions, refined by community input, that are implementable through partnership between the transit and health care industries. Project Components: Project Management Team (funding sponsors) and Project Development Team (other stakeholders) Consultant study by INTC and team Way-fmding maps of medical facilities for bus riders Conference in March 2005 to report and disseminate findings, engage in dialogue, proceedings. Selected Overall Findings: ATTACHMENT 3 - JNTC Study Objective'NEMT trip needs Quantify NEMT need in geographic areas Describe available resources and potential barriers - Devise recommendations to meet geographic area needs with identified resources . - Identify challenges of NEMT geographic areas potentially applicable to other areas of Calif. - Facilitate continuing education of project stakeholders regarding issues and potential solutions to NEMT. Study Elements: Stakeholder interviews and focus groups Resource analysis of transportation services - Review of state and national NEMT models' - Examination of funding resources and barriers - Household telephone survey - Geographic information system (GIS) analysis of multiple data sets. - Analysis and direction Four Organizing Questions: 1. Is there cunrently a need for non -emergency medical transportation to medical appointments for consumers residing within the study areas? 2. If the need exists, what segment of the population is demonstrated to have the greatest need for non -emergency medical transportation in the study areas? 3. Where in the study areas does the target population reside? 4. To what extent does the target population have access to public transit as a transportation alternative to get to medical appointments? Study process and findings, significantly affected by the Healthcare Insurance Portability and Accountability Act (HIPAA), made it premature to develop the anticipated transportation demonstration projects. Importantly, the project has refined our understanding of NEMT issues, to better inform both healthcare and transportation stakeholders. Policy direction to address the Creeds identified requires continued dialogue and adaptation by all parties involved, at local and state levels. Public Transportation Related Findings: 26 Access to public transit services for IEHP members is Population segments have mused medical appts. due to lack of transportation, including those with their own transportation and those depending upon others for transportation. Demographic characteristics of those missing appts. due to transportation are: women, 25 to 34 years of age, household incomes of less than $20,000, MediCal recipients and Spanish speakers. - Seniors appear to be getting to scheduled medical appts., missing or rescheduling fewer medical appts. than other age groups. - The San Bernardino Valley area surfaced as the destination target area for most medical appointments while the populations missing appointments reside primarily in the rural areas of the two counties. Healthcare Related Findings: State level data suggests that California's NEMT policies are not on par with those of other states. Program based upon physical ability and not economic need or the availability of transportation alternatives. Nationally, operating NEMT programs continue to rest on the shoulders of healthcare organizations due to Medicaid funding policies. - Confusion and differences in the interpretation of ILIPAA requirements limited the amount of healthcare related data collected and analyzed in this study. - Wide variations in the levels and methods of reporting NEMT transportation expenses in California make it difficult to determine financial resources targeted to transportation by healthcare organizations. - Missed appt. data is the most important factor for assessing the severity of NEMT need but is not currently being collected by healthcare organizations. - Lack of funding is cited by stakeholders as number one barrier to direct NEMT provision. Perceived success of NEMT programs operating across the country relates to ability to focus on the target population and consolidate administration, rather than cost per trip, and to obtain adequate fmancial resources. Significant cooperation between healthcare and transit is necessary to ensure successful and cost- effective NEMT programs. very good. Data shows that IEHP population segments I are in most cases close to public transit, within r/e mile walking distance from home to a transit stop. Although 57% of the total study area population is within''/s mile offixed-route service, only 31% of the population live near high frequency routes (15 to 30 minute headways). Vast majority (93%)'of IEHP facilities are located within tG.mile of fixed -route services. Nearly half (45%) of IMP facilities are located within close proximity to high frequency transit routes. These facilities generate demand for 63% of NEMT trips of IEHP cases analyzed Dial -a Ride and ADA-related services are operating in each area for eligible seniors and persons with disabilities, but not to those identified as having difficulty getting to appointments, suggesting [CTSA] transportation brokerages as one possible options. Public transit connections medical destinations' outside the local areas are limited Inter -regional connectivity needs significant improvement. Conclusions: - The State of California should consider the overall impacts of its current funding policies and practices relative to non -emergency medical transportation. - The State's policies and practices relative to funding medical transportation under MediCal are inconsistent with other states and contrary to Federal regulation. - The issue of allowing expenditure of MediCal funding for NEMT for low-income MediCal recipients must be recognized and accepted as a critical core issue in the State's efforts to identify and further local efforts to address NEMT needs. - Rapidly changing socioeconomic conditions of the Inland Empire do suggest that in-depth "destination - based" information about missed appts. would logically assist transit operators in developing services that better replicate travel patterns of study area participants. - Destination -type data could be collected as part of . ongoing. transit data collection efforts to serve as a valuable tool in designing more productive services,, based upon demonstrated demand - There is no one answer, no one-time answer as each recommended action must serve to enhance and support the overall objective of addressing NEMT needs. Judith Norman — Transportation Consultant (310) 608-2005 Heather Menninger-Mayeda - AMMA (909) 621-3101 Revised January 21, 2005 27 AGENDA ITEM 8 RIVERSIDE COUNTY TRANSPORTATION COMM/SS/ON DATE: June 27, 2005 TO: Plans and Programs Committee FROM: Stephanie Wiggins, Rail Department Manager John Standiford, Director of Public Information THROUGH: Hideo Sugita, Deputy Executive Director SUBJECT: Authorization for Development and Release of a Request for Proposal for Public Outreach Consultant Services for the Perris Valley Line Project STAFF RECOMMENDATION: This item is for the Committee to: 1) Authorize the development and release of a Request for Proposal for the purpose of conducting additional Public Outreach related to the Environmental Document for the Perris Valley Line Project, and 2) Forward to the Commission for final action. BACKGROUND INFORMATION: Staff will provide a report on the Request for Proposal at the Plans and Programs Committee meeting. 28 AGENDA ITEM 9 RIVERS/DE COUNTY TRANSPORTATION COMM/SS/ON DATE: June 27, 2005 TO: Plans and Programs Committee FROM: Brian Cunanan, Staff Analyst THROUGH: Marilyn Williams, Director of Regional Programs and Public Affairs SUBJECT: Fiscal Year 2005/06 Measure "A" Commuter Assistance Buspool Subsidy Funding Continuation Requests STAFF RECOMMENDATION: This item is for the Committee to: 1) Authorize payment of $1,645/month per buspool for the period July 1, 2005 to June 30, 2006 to the existing Riverside, Moreno Valley, Corona and Mira Loma buspools; 2) Require subsidy recipients to meet monthly buspool reporting requirements as support documentation to receive payments, and 3) Forward to Commission for final action. BACKGROUND INFORMATION: As part of the Measure "A" Commuter Assistance Program, the Commission provides funding support to buspools used by Riverside County residents for their commutes along the Route 91 and Route 60 corridors. The Commission adopted' the Measure "A" buspool subsidy in October 1990 and established a monthly subsidy rate of $1,175 or $25/seat/month in support of commuter buspool operations. In July 2004, the Commission set the subsidy rate_ to $35/seat/month to help with increased operational costs realized by buspool riders during the previous 14 years. To provide additional guidance, the Commission also established a minimum buspool ridership policy in June 1995. The policy requires staff to report to the Commission when a buspool's ridership falls to 25 or below and seek direction regarding the continuation of the buspool's subsidy. Like all commuter assistance incentives provided by the Commission to encourage use of alternative modes of transportation,the Measure "A" $35/seat/month subsidy is administered as a "user side subsidy." The Commissions' subsidy is an important factor that makes buspools an attractive alternative for these commuters with roundtrip commutes in excess of 100 miles. Also, the Commissions' subsidy remains cost-effective compared to the typical public transit subsidy rate of 80%. 29 While the monthly cost of each buspool varies according to the number of route miles and the resulting negotiated service price, the Commission's monthly subsidy reflects a subsidy rate of 19%. Average Monthly Buspool Fare Per Rider $180.25 RCTC'Subsidy Per Seat $35.00 Subsidy; Rate 19% Unlike all of the other Commission approved ridesharing incentives, which have a 3-month term, the buspool subsidy is on -going. To renew its annual subsidy, an existing buspool is required to: 1) request in writing, continuation of funding from the Commission for the new fiscal year, 2) consistently meet minimum ridership requirements and 3) submit monthly ridership reports throughout the year. The four existing buspools have completed all the requirements for funding as set forth by the Commission including submittal .of monthly ridership reports and annual funding continuation requests. They have consistently exceeded the minimum ridership level of 25 riders per month and have collectively averaged 40 riders/month/buspool this current fiscal year. Buspools Corona Mira Loma Moreno Valley Riverside Average Riders/Month 38 39 46 35 Roundtrip Distance 110 mi 123 mi 158 mi 135 mi Annual Miles Saved` 1,074,009 mi 1,243,378 mi 1,,877,040 mi 1,224,322 mi 5,418,749: Miles Saved Annually It is estimated that nearly 5.5 million miles were saved in FY 2004/05 by the current buspool operation. Plus, while taking other factors into consideration such as the reduction of vehicles on Route 91 and Route 60.during peak periods and the elimination of mobile source emissions, the annual buspool subsidy is an effective use of Measure "A" commuter assistance funds. The proposed FY 2005/06 RCTC budget contains a line item to providebuspool subsidies in the amount of .$98,700. Based on the established monthly 51,645/month per buspool subsidy policy, the funds are 'sufficient to support the four existing°buspools plus one new start-up buspool if needed. 0 30 Financial Information In Fiscal Year Budget: Y Year: FY 2005/06 Amount: S98,700 Source of Funds: Measure "A" funds Budget Adjustment: N GLA No.: 226-41-81030 Fiscal Procedures Approved: \44,440,1� Date: 6/22/05 Attachments: (4) Continuation of funding request letters 31 Raytheon Company Attn: Angela Abruscato RE/R07/P583 PO Box 902 El Segundo, CA 90245-0902 May 11, 2005 Attu.: Brian Cunanan, Staff Analyst Riverside Courtly Transportation Commission P.O. Box 12008 Riverside, CA. 92502-2208 Dear /vb. Cnnanan, �ECED V En NAY o bop 11-2/ TRANSPR� TVERSIICOUNTY ORTCOMMISSION 71907 In compliance with the requirements of the Riverside County Transportation Commission (RCI14,1 am requesting an extension of funding for the period of July 1, 2005 to June 30, 2006 for the "Riverside" to El Segundo Commuter Baspool. I am the buspool operator and coordinate • this buspool independently from any employer. The manddy cost to operate this buspool from Twrrcoach is $177 per rider. RCTC provides a $35 monthly subsidy per seat and the retraining $142 is provided between the riders and their employers. Ridership on this buspool has averaged 35 passengers per mouth for the first three quartets of FY 2004/2005. The following is the Riverside to El Segundo buspool schedule: AM Departure AM Departure - AM Arrival PM Departure PM Arrival PM Arrival Cralleria at Tyler, Riverside Corona Park & Ride Lot Raytheon, El Segundo Raytheon, El Segundo Corona Park & Ride Lot Gaileria at Tyler, Riverside 4:20 a.m. 4:30 a.m. 5:30 a.m. 3:20 p.m. 4:30 p.m. 4:45 p.m. Information on this buspool is available with rideshare programs at Raytheon, Boeing, Aerospace Couporaiw,u and the Los Angeles Air Force base. Employees receive this information through direct mailings, newsletter articles and electronic messaging from these employers. These employer ridesharc programs also share this information with other local employee transportation coordinators. Thank your for your continued support of this successful buspool Sincerely, b„,„„),, Angela Riverside Buspool Coordinator YY.52.6.2.2 32 05/11/2005 WED 04:33 FAX 31a 330 1208 PROPERTY MANAGEMENT 002 HARLAN ALPERT Send contspondenees to: Aerospace Corporation 2350 E. El Segundo Blvd. El Segundo, CA 90245-4691 May 11.2005 Attu.: Brian Cullman, Staff Analyst Riverside County Transportation Commission P.O., Bon 12008 Riverside, CA. 92502-2208 Dear Mr. Cunanan, In compliance with the requirements of the Riverside County Transportation Commission (RCIC). sun requesting an extension of funding for the period of July 1, 2005 to June 30, 2006 for the "Mira Loam (Mira Loma/CoIona) to El Segundo Commuter Buspool. 1 am the huspooi operator and coordinate this buspool independently from any employer. The monthly cost to operate this buspool from'fourcoach is $I77. ROTC provides a 535 monthly subsidy ,per seat and the remaining $142 is provided between the riders and their employers. Ridership on this buspool has averaged 39 passengers per month for the firstthree quarters of FY 200412005_ The following is the Mira Loma/Corona Buspool schedule: AM Departure Mint Loma 4:15 a.m. AM Departure e Corona Park & Ride Lot 4:30 a.m. AM Arrival El Segundo 5:30 a.m_ PM :Departure PM Arrival PM 'Arrival El Segundo Corona Park & Ririe Lot ' Mira Loma 3:00 p.m. 4:30 p.m. 4:45 p.m. Information on this buspool is available with rideshare probrams at Boeing, Raytheon, Aerospace Corporation and the Los Angeles Air Force base. Employees receive this information through direct mailings,newsletter articles and electronic messaging from these employers. These employer ridcshare programs also share this information with other local employee transportation coordinators. Thank you for your continued support of this successful buspool program. Harlan Alpen Mira Loma Buspool Operator 33 05/11/2005 WED 04:33 FAX 310 336 1208 FROFERTY MANAGEMENT hoar HARLAN ALPERT Send correspondences to: Aerospace Corporation 2350 E. El Segundo Blvd. El Segundo, CA 90245-4691 May 11, 2005 Attn.: Brian Cunanan. Staff Analyst Riverside County Transportation Commission P.O. Box 12008 Riverside, CA_'92502-2208 Dear Mr. Ctmanan. in compliance with die requirements of the Riverside County Transportation Commission (RCTC), T am requesting an extension of funding for the period of July I, 2005 to lune 30, 2006 for the "Moreno Valley" to El Segundo Commuter Buspool. 1 am the halloo' operator and , coonlinate this buspool independently from any employer. The monthly cost to operate this buspool from Tourcoach is $182. RCTC provides a $35 monthly subsidy per seat and the remaining $147 is provided between the riders and their employers. Ridership on this buspool has averaged 46 passengers per month for the first three quarters of FY 2004/2005. The, following is the Moreno Valley Buspool Schedule: AKDeppantire . AM Arrival FM Departure PM Arrival Moreno Valley Mall El Segundo El Segundo Moreno Valley Mail 4:00 a.m. 5:30 a.m. 3:00 p.m. 5:00 p.m: Information on this buspool is available with rideshare programs at Boeing. Raytheon, Aerospace Corporation, and the Los Angeles Air Force base. Employees receive this informarion through direct mailings, newsletter articles and electronic messaging from these employers. Thrse employer rideshare programs also share this information with other local employee transportation coordinators. Thank you for your continued support of this successful huspool program Sincerely, `7 Harlan Alpert Moreno Valley Buspool Coordinator 34 SANDRA DALEY 4203 Havenridge Drive Corona, CA. 92883 May 11, 2005 Attn.: Brian Cunanan, Staff Analyst Riverside County Transportation Commission P.O. Box 12008 Riverside, CA. 92502-2208 Dear Mr. Cunanan, JJUNN gg13 2005 J TRAtBPORTAItOtt� ooN 72168 In compliance with the requirements of the Riverside County Transportation Commission (RCTC), I am requesting an extension of funding for the period of July I, 2005 to June 30, 2006 for the "Lake Elsinore" (Lake Elsinore/Corona) to El Segundo Commuter BuspooI. I am the buspool operator and coordinate this buspool independently from any employer. The monthly cost to operate this buspool from Odyssey is $165 or $185 with gas increase. RCTC provides a $35 monthly subsidy per seat and the remaining is between $130 or $150, which is provided between the riders and their employers. Ridership on this buspool has averaged 38 passengers a month for the first three quarters of FY 2004/2005. The following is the Lake Elsinore buspool schedule: AM Departure AM Arrival PM Departrae PM Arrival Corona Park & Ride Lot El Segundo El Segundo Corona Park & Ride Lot 4:50 a.m. 6:05 a.m. 3:50 p.m. 5:15 p.m. Information on this buspool is available with rideshare programs at Raytheon, Aerospace and the Los Angeles Air Force base. Employees receive this information through direct mailings, newsletter articles and electronic messaging from these employers. These employer rideshare programs also share this information with other local employee transportation coordinators. Thank you for your support of this buspool program. Lake Elsinore Buspool Operator s YY.52.6.2.2. • 35 AGENDA ITEM 10 RIVERS/DE COUNTY TRANSPORTATION COMM/SS/ON DATE: June 27, 2005 TO: Plans and Programs Committee FROM: Sheldon Peterson, Staff Analyst Stephanie Wiggins, Rail Department Manager THROUGH: Hideo Sugita, Deputy Executive Director SUBJECT: Commuter Rail Program Update STAFF RECOMMENDATION: This item is for the Committee to: 1) Receive and file the Commuter Rail Program Update as an information item, and 2) Forward to the Commission for final action. BACKGROUND INFORMATION: Riverside line Passenger trips on Metrolink's Riverside Line for the month of May averaged 4,309 which is down 186 (-4%) from the month of April. The line has averaged an overall decrease of (-9%) from a year ago. May 2004. May on -time performance averaged 85% inbound (+10% from April) and 75% outbound (+8% from April). There were 50 delays greater than 5 minutes during the month of May, a 24 point decrease .from the month of April. Union Pacific continues to be the primary cause of delays; Metrolink staff is working directly with the railroad to try to improve performance. The following were the primary causes: Signals/Track/MOW Dispatching Mechanical Other 36 Riverside Line On Time Performance Follow Up The Riverside Line continues to have significant on time performance problems due to dispatching and track work from the owner Union Pacific Railroad. Metrolink offered 25% off discounts for Riverside Line Riders for the July Monthly Passes. On Thursday, June 9th, SCRRA filed a notice to cure to the Union Pacific, demanding improved performance on the Riverside Line. The focus of the letter was to request track capacity upgrades in order to ensure Metrolink Riverside Line trains ran on time. The letter outlines the poor schedule performance and demands the Union Pacific take some dramatic steps to live up to their end of the agreement. 'David Solow'followed' up with Dennis Duffy, Executive Vice President for Operations of the Union Pacifica Mr. Duffy acknowledged that UP has not been giving Metrolink satisfactory performance, and promised to respond to the notice to cure letter quickly. Mr. Duffy also committed to a meeting to discuss their long-range plans for the Los Angeles area. This is another step in Metrolink's effort to improve On Time Performance on the Riverside Line. Inland Empire -Orange County Line Passenger trips on Metrolink's Inland Empire -Orange County (IEOC) Line for the month of May averaged 3,810 an increase of 14 riders or (0%) change from the month of April. The line has increased (3%) from a year ago May 2004. RCTC Staff is working with Metrolink to develop a specific marketing plan to attract new riders to the IEOC and 91 Lines from Riverside. May on -time' performance averaged 94% southbound (-2% from April) and 95% northbound (+5% from April). There were 14 delays greater than five minutes during the month of May, a decrease of 3 from the previous month. The primary causes were: Dispatching Mechanical Other 37 91 Line Passenger trips on Metrolink's 91 Line for the month of May averaged 2,076, an increase of 157 riders or (8%) from the month of April. The line has averaged an increase of 16% from a year ago May 2004. May on -time performance averaged 92% inbound (0% change from April) and 96% outbound (+6% from April). There were 11 delays greater than five minutes during the month of May, a decrease of 6 from April. The primary causes were: Dispatching Mechanical Other Attachment: Metrolink Commuter Update — Riverside Line Performance Metrolink Performance Summaries (May 2005) 38 May 26, 2005 Dear Riverside Line Passenger, In response to diagnostic testing of track conditions on its Southern California routes, the Union Pacific Railroad has been performing track maintenance work on a 12-mile stretch of your line since last week. This work has required the placement of "slow orders" or restrictions on train speeds in different locations along the route. The effect on our train service has been more severe than anticipated. To reduce delay impacts, Union Pacific officials, at Metrolink's insistence, agreed to expedite repairs by stopping all train traffic on the line for several hours on Wednesday in order to allow maintenance crews to have an extended period to perform uninterrupted work. It was for this reason that Riverside Line midday trains 402 and 411 were cancelled. There should be no need to cancel any other Metrolink trains to complete the required work. While periodic diagnostic testing is an appropriate safety measure, Union Pacific lacked a well thought-out plan to quickly correct any problems identified. We believe their response to the "slow orders" should have been more aggressive in order to minimize the effects on both you and their freight customers. We will be addressing this with Union Pacific senior management in Omaha. i Unfortunately, your commute was also delayed by a Union Pacific freight train that derailed early Wednesday morning. This incident caused a small spill of a hazardous material in the Boyle Heights area of Los Angeles and forced the cancellation of the first two trains from Riverside to Los Angeles (trains 401 and 403). With fire department approval, train service was restored in time for train 405 (the 6:15 a.m. departure from Riverside) to operate with only slight delays. According to the Union Pacific, more limited delays due to slow orders will still occur Thursday and Friday (May 26 and 27) at certain locations where work has not been completed. All work should be completed by May 30 and all speed restrictions removed in time for regular Metrolink service resume on Tuesday May 31. Again, we thank you for your patience while maintenance work on your line is completed. 39 • • • • METR9LINK PE.RFORMANpE SUMMARIES • T)ECEtVEn n JU'2.'0 2005 111) TRAAMORastissioN May 2005 (Revised to include A-788 & A-799 Performance) METROLINK AVERAGE WEEKDAY PASSENGER TRIPS Passengers On -Time vs. Trains On -Time not available due to the Maximus system transition. METROLINK ON -TIME. PERFORMANCE Weekday Trains (Latest 13 Months) May 04 Jun 04 Jul 04 Aug 04 Sep 04 Oct 04 Nov 04 Dec 04 Jan 05 rii % Arriving. Within 5-Minutes. Of Scheduled Time I Feb 05 Mar 05 Apr 05 May 05 70 AMTRAK SHARED SERVICE ON -TIME PERFORMANCE May 2005 60 - 50 20 10 0 --.Assist-disabtad-110_,. st, eras 40 40 40 eras 40 40 4as crab 40 40 ,a0 �a9 ��� 4ak N'c <V .� NC f � ti> tip' re tiY ti� (IV �. ti.. 1�. � rbN 768 OTP = 73% 799 OTP = 91 % -4- 768 799 Data Source: Amtrak Conductor Reports (Data available 5/16/05-5/31/05) • % of Train Delays By Responsibility May 2005 AMTRAK-INTER CITY Includes Weekend sendde BNSF 16% BOMBARDIER 10% NGINEERING 10% blondes weekend serves % of Train Delays By Responsibility 12 Month Period, Ending May 2005 OTHER 22% AMTRAK-INTER CITY 2% BOMBARDIER 10% ENGINEERING 13% PEREQRIUTANCE. CHAR TS �- .BACK-UP • METROLINK AVERAGE WEEKDAY PASSENGER TRIPS THIRTEEN MONTH WINDOW - HOLIDAY ADJUSTED ,:,,z i ev.o t:r S J f.' is .rvt.�{: )1S�.v!h,'Tti. ;t d✓�� r �.,t ;r, S-'W�,... �'. - .. � '� +r�Q3^,"�� �� L 4 �P.F � � �,y�`�,u$�. �.� <-,3�„�,`R. Jiik�:v �fli��� '`��A.y...1�� R ? .i - ��,. � ,�5� pf Irv` '... .Y� � � Ijf .� 'N.++!.l i�., '✓4 4J M Q:A'®"�, ,::� .r _ c . - . c.V�ne y^Sf4sY F �lC _ .°3 .. J '1 f a,�.. ran � ..,`f �;¢ M ..3., l Y 1:. i4 l �Y"S'/„� (J J���r P N.^V� �.. � , Wi� .77 , f Y" .i i'3•.r 1", ,.e,I r Y`,i3 J.! L..:�1' tl��"^� .% yhh Y ," n: 72^±' �N, May 04 3,970 6,180 11,213 645 4,745 5,966 3,696 1,783 38,198 0% Jun 04 3,868 6,258 11,013 645 4,629 5,876 3,619 1,862 37,770 -1% Jul 04 3,829 6,384 10,674 615 4,606 5,900 3,427 1,802 37,237 -1% Aug 04 3,822 6,327 10,456 613 4,676 5,943 3,468 1,781 37,086 0% Sep 04 3,954 6,370 10,913 632 4,829 5,755 3,555 1,974 37,982 2% Oct 04 4,143 6,540 11,221 644 4,575 5,973 3,647 1,893 38,636 2% Nov 04 4,099 6,769 10,902 671 4,896 6,001 3,649 1,862 38,849 1% Dec 04 3,465 6,187 10,062 595 4,417 5,208 3,160 1,651 34,745 -11% Jan 05 3,378 5,953 11,237 605 4,623 5,912 3,738 1,808 37,254 7% Feb 05 3,828 -6,449 11,403 552 4,544 5,835 3,927 1,890 38,428 3% Mar 05 3,979 6,573 12,031 562 4,379 5,969 3,820 1,883 39,196 2% Apr 05 4,174 6,733 11,757 617 4,495 6,065 3,796 1,917 39,554 1% May 05 4,003 6,840 11,603 647 4,309 6,149 3,810 2,076 39,437 0% %Change May 05 vs Apr 05 -4% 2% -1% 5% 4% 1% 0% 6% 0% % Change May 05 vs May 04 .. 1% 11 % 3%- 0% . -9% 3% 3%16% 3% A 02 AVERAGE DAILY METROLINK MONTHLY PASSHOLDERS ON AMTRAK THIRTEEN MONTH WINDOW ii'aili.:.,i:;iiiiii?:?i: :i:iiii;iffifii:?:i �i'::;::':':�:'fY:::::::.n;•;:p:;: ^::,..nini ...:.:.:.....::........1 ow,.. ... .......... :.:.... .., litit::::::4w: :e:::nn•... •.::•.:..... ,....... , ...:...:: ,•.:•::......... ..r t::!!. 3Jd�i3j0W .: •':,':p t:. ,..iii ., : :fi...••.: .;.:. .. ,...... •:.1 .t.......,...•.,1.... ;..::;:•:::.l:ta: � :.:.::•:.:�.:::.:....:.:...:,.,.,.. :.. .P y:..:.:.:........:...:.:.P:.. . , ....,..,........,,.......... �1,.,..:..... If•:.:;t,. :.::..t.,:.:.:.•mt:,:;,n,• ...t.,..,t......,., ..... , .,....c.r.ar...:,.:: :ilio!iiii:•:iiii!i ' ,: :ty:: y: t t.: ��{, btay '. .....,..... � •,::: ;T a..:�:§::::n.:�.,::::::::er::r::::r:.,:^,:±.•.;..::,.,....:......,.,:.:.•::. ii,.:.: - :,.:.•.. ,.:.:.:.t:::l:Ng:.:..:: t•. n: {.::::: , iN ...,,�.:,(,.. ::Y::� :::W.hhb� ..t.y. ..•...Fx:.•:...,...n,t ��i�: ,,,aa�/.,haw {{,, t•I?y: x y .,:..,.�,.�....:.�:x�pii�41,,,.,.r.. 1R!';t!iiiiiii1ii! , , , . I , , .: ?,.............;..fi , f "i ...1:: .i.:: . <�' p...., 't i?„.4?R; A:•ie44`!E: ; >}'.:.4.0:1:: .. 'yy! 611 •:::•:"';:: p''•.:;,::.n'�i7h� i :I! ...J�,•... i:h! .. ...;.; ,� ..:� .. <iti "•�•,• ., E:�tV:$tktl',d�F.,:;.:t:$atuEtlb�E:i:•.::.SUAd:�iiEiViiN�IdIiIYBy:i3t'8iilktl,'d�Ei°,E:Fri'�`t??Yd6ft•..:`;.�1!§�kd'Bj�..?Sal�Irdf{�;::?:8dd?+�'t'rEidrklNd�Ybllbk i ... ...:.: .... ll Lli' ... .n1.!,. I f \ llf L; ... .: i, : i....•.i 3 :...:.:.:.: :.:.r ;4' :?ifi::??? i:i ri'� i i t ..,?.?, .. *5 l.. i —'74.. ?. .:,?.:.:,N?,f.r-.?.?.anu).t .i .... :: � �"7 .... i'+ ...., t...?::?r .:. t nnn:•:.t.:., . •"•' • • : 1 May 04 (7) 1,123 278 265 120 34 35 1,243 312 ' 300 -2% 33% 10% 104 ::i„ .N1i�.. Jun 04 1,112 269 220 119 47 26 1,231 316 246 -1% 1% .: -18% 90 Jul 04 (8) . 1,1.10 247 230 128 37 26 1,238 284 256 1% -10% 4% 118 Aug 04 1,110 244 275 128 - 86 34 1,238 330 309 0% 16% . 21% 99 Sep-04 (9) 1,106 210 199 135 21 25 1,241 231 224 0% -30% -28% 93 Oct-04 (10) 1,222 255 237 137 43 19 1,359 298 256 10% 29%, 14% 85 Nov-04 (4) 1,246 296 270 152 27 26 1,398 323 296 3% 8% 16% 83 48 Dec-04 (5) 1,123 251 197 212 13 24 1,335 264 221 -5% -18°% -25% 85 49 Jan-05(6) 1,115 190, 199 268 22 20 1,383 212 219 4% -20% -1% 103 48 Feb-05(11) 1,192 236 236 179 12 51 1,371 248 287 -1% 17% 31% 68 30 May-05 . 1,235 483 319 216 40 37 1.1451 523 356 6% 111% 24% 89 50 Apr-05 1,293 347 253- 221 56 23 1,514 402 278 4% -23°% -23% 148 48 May-05(12) 1,297 380 256 223 94 62 1,519 475 318 IA 18°% 15% 148 68 h inane may 05 va Apr 05 0% 10°% 1% 1% 70% 170°% 0°% 18% 15°% % Change May 05 vs May 04 15% 37%' -3% 85°% 177°% 77°% 22°% 52% 8% (1) Pdor to Roll2 Rea. Amtrak Step-Up/No Step•Upprogram was only. good on Amtrak weekday trains:'" (2) Rali 2 Raft program Matted September 1, 2002. (3) Missing date has been adjusted by a/dna mabweel ridership count for tha respective traln. day °tweak and month. - (a) Average of first 3 weakaof month only es blecic.out In place for. the Thankeglvingweek.NOTE: Started Coda Share trains north of LA 11/17104, monthly, passhoktars Included Mt Rall 2 Roll counts (5) Average excluding Chdatmaa and New Testa Day holidays., NOTE In 2004'Coasterea higher duato derailment on 1211T _- (8) Average excluding January 'Land MLK holiday. In 2004 no Amtrak service north of LA after. 16E06 and south of LA 1/12.14. Average reflects days of service. . (7) Average excluding May31 - - - - (8)Average exdddingJuly B - (o)Average excluding Labor Day. - - (10)Average excluding Columbus Day• _ (11) In January and February2006, service Interrupted north of LA due to stoma. Avenge reflects only dayavatheelvlra, - (12)may 31Included InSunday counts • 0% 42% 42% perf manm-Rail2 Ra028/15410 42,000 40,000 38,000 36,000 34,000 32,000 30,000 28,000 26,000 24,000 22,000 20,000 18,000 16,000 x, 14,000 - 12,000 10,000 8,000 a 6,000 Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun X METROLINK AVERAGE WEEKDAY PASSENGER TRIPS - HOLIDAY ADJUSTED INCEPTION TO DATE Fy 04/05 03/04, FY 02/03 01/02 Y 00/01 Y 99/00 98/99 97/96 FY 96/97 FY 95/96 FY 94/95 FY 93/94 10 Aonjereew.tlt Cd 2000 a as p 1500 Q 1000 Jun Note: Sept Includes LA. County Fair. Skala Jul San. Bernardino: Line: Saturday Service Average Daily Passenger Trips Aug Sep Oct Nov Dec Jan Feb Mar Apr May-05 Avg Daily Riders 3500 3000 2500 2000 1500 1000 500 0 May-D4 Jun Note: Sunday Service Began 06/25/00 Jul San. Bernardino. Line. Sunday Service Average Daily Passenger Trips Aug Sep Jan Feb Mar Apr May-05 cn 3 3500 3000 H 2500 a� v CC 2000 c 0 1500 500 May-04 Jun Jul Aug Antelope. Valley Line Saturday. Service Average Daily Passenger Trips Sep Oct Nov Jan Feb Apr May-05 12 CAUSES OF INETROLINK DELAYS. May 2005 PRIMARY CAUSE OF TRAIN DELAYS GREATER THAN 5 MINUTES CAUSE: VEN AVL SNB BUR RN OC. INUOC 91-LA TOTAL %of TOT ENGR-IMPROVEMENT/CONST 0 0 0 0 0 1 0 0 1 0% ENGR-OTHER 0 0 0 0 .1 0 0 0 1 0% ENGR-S&C 2 3 8 1 4 7 1 2 26 12% ENGR-TRACK 1 . 2 0 0 21 0 0 2 26 12% MECH 1 7 3 0 0 8 2 0 21 10°% OPS-DISPATCH 7 2 2 0 20 7 8 5 51 24°% OPS•OTHER 3 8 10 0 2 4 0 1 28 13% OPS-PASSENGER 0 4 , 2 0 0 0 0 0 6 3% 32PS-SCRRA 4 25 4 1 2 2 3 0 41 20% OPS-T AND E 0 6 1 1 0 0 0 1 9 4% TOTAL 18 57 28 3 50 29 14 11 210 100°% 14 Saturday SNB 0 0 1 0 0 1 0 0 1 0 3 Saturday AVL 0 0 0 0 0 0 0 0 0 0 0 Sunday SNB 0 0 0 0 0 1 0 0 0 0 1 0505048 METROLINK SCHEDULE ADHERENCE SUMMARY - WEEKDAY SERVICE Percentage. of Trains Arriving Within 5 Mtnutes of. Scheduled Time LATEST 13 MONTHS jj i . it a. f!r 2.. 'M ttl )'jy L....i ✓Yt� U ins iVF !.` `"'.f1 eIV,Y 'F. a Y� .S }W .. u,,' Wf 11f+ n: , (( ).f Ilwny�!5£r�S{.91''r.�li '1�F J]:.:l1 .1'r, } .4',.Yf R p. �4' �w L:l .,. t�'A'. y"A. ��'�°?.Y� V ). !l'`'Y(. M :, ?4;�F � 1 4�'�bi .1 J ro3 i � l,` 4. ��.IMIa� YYr'll.. /.�.. �. %rf. rot �I (�] I`{�"v i, � f. f• 4J)(, 'E :l�rv��l�` I I w-: '.. I,.�1 1 V 21 F.. May 04 99% 97% 98% 98% 99% 98% 100% 100% 98% 95% 96% 97°% 95% 93% 96% 98% N 98% 97% 97% Jun 04 100% 98% 97% 95% 93% 93% 100% 100% 92% 91% 95% 94% 97% 94% 97% 99% 96% 95% 96% Jul 04 100% 98% 96% 92% 90°% 89% 100% 100% 96% 95% 94% 97% 90% 86% 94% 91% 94% 93% 94% Aug 04 99% 99% 98% 93% 91% 90% 97% 99% 93% 92% 91% 91% 95% 89% 92% 94% 94% 93% Sep 04 99% 98% 98% 95% 94°% 91% 98% 100% 86% 89% 89% 91% 91% 87% 93°% 89% 94% 93% 94% 93°% Oct 04 99% 98% 95% 93% 94% 89% 98% 98°% 85% 82°% 91% 941A 90% 93% 90°% 94% 93% 92% Isov04 96°% 97% 94% 96% 96% 95% 98% 98% 89% 83% 90% 91% 92°% 91% 94% 92% 94% 94% 93°%1 94°%. i\J 99% 96% 94% 93% 95% 97% 99% 99% 87% 87% - 92% 96% 93%94%95% 97% 94%95% 95% Jan 05 88% 81% 87% 77°% 98% 94°% 97% 98% ' 82°% 70% 85% 87% 91% 88% 87°% 94°% 90% 87°% 89% Fab 05 90% 89% 90°% 87% . 95% 92°% 96% 97°% 87% 88°% 89°% 87% 89%° 86% _ 98% 95% '92°% 90% 91°% Mar 05 98% 93% 98% 95% 991% 99% 99°% 99% 89% 71% 95°% 93% ` 91%° 79°% 92% 97°% 96% 93°% 94% Apr 05 95% 96% 98°% 96% 97°% 95% 99% 100% 75% 67% 95°% 94% 96% 90% 92% 90°% 94°% 93°% 94% May 05 9751. 94°% 91°% 86% 97°% 96°% 98% 99% 85% 75% 91% 95°% 94% 95°% 92°% 96°% 94% 92% 93°% Peak Period Trains Arrlvina Wlthln S Mlnutea of Scheduled Tirn - Me 05 -.;, ,. r101 .. '4..-7'. 111 .,i H.,,f.;a.. ��.,�,o.�,:;,,IL ..t. .f.:SL..6.U;41,,",,, ..a..J <....,:.ttiv7 i� '� .. ..: r!�. t',SA t..,. I: ai).l rt,.,.0,l!.. .,.. bf..i.�7:. ... .i.f,bA� rj34di.J.. lal.i :,.11.oi ' 98 8r0• „�... _. .... �... Trains 95% 90% 95% 81% 96% 93% 99% 99% 88% 74% 91% 93% 93% 98% 95% 93% 94% 90% 92°% No adjustments have been made for relievable delays. Terminated trains are considered OT If they were onetime at point of termination. Annulled trains are not included In the on -time calculation. 1• FREQUENCY OF TRAIN. DELAYS. BY DURATION. MAY 2005 MINUTES. LATE: VEN AVL SNB BUR RIV OC IEIOC. RIV/FUL TOTAL % of TOT NO DELAY 327 342 591 224 152 315 213 165 2,329 79.5% 1 MIN - 5 MIN - 30 105 94 24 46 53 25 12 389 13.3% 6 MIN - 10 MIN 7 26 9 3 22 12 9 5 93 3.2% 11 MIN - 20 MIN 5 9 12 0 18 10 3 5 62 2.1% 21 MIN - 30 MIN 6 6 3 0 7 5 2 0 28 1.0% GREATER THAN 30 MIN 1 16 4 0 3 2 0 1 27 0.9% ANNULLED 5 3 1 1 4 3 0 1 18 0.6% TOTAL TRAINS OPTD 375 504 713 251 248 397 252 188 2,928 100% TRAINS DELAYED >0 min 48 162 122 27 96 82 39 23 599 20.5% TRAINS DELAYED > 5.mir 18 57 28. 3 50 29 14 11 210 7,2% ososF• AGENDA ITEM 11 RIVERS/DE COUNTY TRANSPORTATION COMMISSION DATE: June 27, 2005 TO: Plans and Programs Committee FROM: Steven DeBaun, Legal Counsel Naty Kopenhaver THROUGH: Eric Haley, Executive Director SUBJECT: Approval of Resolution No. 05-010, "A Resolution of the Riverside County Transportation Commission Amending and Adopting Local Guidelines for Implementing the California Environmental Quality Act" STAFF RECOMMENDATION: This item is for the Committee to: 1) Approve Resolution No. 05-010, "A Resolution of the Riverside County Transportation Commission Amending and Adopting Local Guidelines for Implementing the California Environmental Quality Act," and 2) Forward to the Commission for final action. BACKGROUND INFORMATION In 2003, the outgoing Davis Administration proposed numerous amendments to the State CEQA Guidelines and many other administrative regulations. The present Governor, Arnold Schwarzenegger put all of these proposed new regulations, including the State CEQA Guidelines "on hold" pending review of, his staff. After review of the proposed changes to the State CEQA Guidelines, the Resources Agency withdrew some of the proposed amendments, revised others, and gave notice that it intended to proceed with some of the proposed revisions. In July 2004, the Resources Agency released a "Final Statement of Reasons of Proposed Guideline Amendments" which listed the proposed amendments, explained them, and included the Resource Agency's responses to the comments it had received during the rulemaking process. On September 7, 2004, the Resources Agency officially amended Sections 15023, 15041, 15062, 15063, 15064, 15065, 15075, 15082, 15085, 15087, 15088, 15088.5, 15094, 15097, 15126.4, 15130, 15152, 15183, 15205, 15206, 15252, 15313, 15325, 15330, 15378, Appendixes C and D of the State CEQA Guidelines. The Resources Agency also added two new provisions to the Guidelines — Section 15333 and Appendix L. 55 Due to the volume in completely reproducing the Local Guidelines, Legal Counsel will brief the Commissioners on the major changes at the meeting. The Local Guidelines are available to the Commissioners (CD) if they wish to have a copy on file. In addition to the administrative amendments, there were a number of CEQA legislations that were passed and the Governor signed ten bills relating to CEQA. A summary of these bills are attached. Attachment: Resolution No. 05-010 56 RESOLUTION NO. 05-010 A RESOLUTION OF THE RIVERSIDE COUNTY TRANSPORTATION COMMISSION AMENDING AND ADOPTING LOCAL GUIDELINES FOR IMPLEMENTING THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (PUB. RESOURCES CODE § § 21000 ET SEQ.) WHEREAS, the California Legislature has amended the California Environmental Quality Act ("CEQA") (Pub. Resources Code §§ 21000 et seq.) and the State CEQA Guidelines (Cal. Code of Regs, tit, 14, § § 15000 et seq.) and the California courts have interpreted specific provisions of CEQA; WHEREAS, Section 21082 of CEQA requires all public agencies to adopt objectives, criteria and procedures for the evaluation of public and private projects undertaken or approved by such public agencies, and the preparation, if required; of. environmental impact reports and negative declarations in connection with that evaluation; and WHEREAS, the Riverside County Transportation Commission must revise its local guidelines for implementing CEQA to make them consistent with the current provisions and interpretations of CEQA. NOW, THEREFORE, the Board of Riverside County Transportation Commission hereby resolves as follows: SECTION 1. The Commission adopts "Local Guidelines for Implementing the California Environmental Quality Act (2005 Revision)," a copy of which is on file at 57 the offices of the Commission with the Clerk of the Board and is available for inspection by the public. SECTION 2. All prior actions of the Commission enacting earlier guidelines are hereby repealed. ADOPTED this 13`h day of July, 2005. C. Robin Lowe, Chair Riverside County Transportation Commission ATTEST: Naty Kopenhaver, Clerk of the Riverside County Transportation Commission 58 ATTACHMENT 2005 Update to Local Guidelines for Implementing California Environmental Quality Act (CEQA) Assembly Bill 3090 (AB 3090) AB 3090 requires that the CEQA Guidelines be revised to reflect the California Supreme Court's holding in Friends of Sierra Madre v. City of Sierra Madre, 25 Cal. 4th 165 (2001):: Previously, Section 15378 of the CEQA Guidelines defines the "projects" that are not subject to CEQA; this definition excluded proposals that are submitted to a vote of the people from the CEQA review process. Public agencies had relied on this provision to put initiative measures on the ballot without undertaking environmental review of the potential impacts of the proposed new laws. In Friends of Sierra Madre, the Court ruled that the Guidelines' exclusion .: of initiatives sponsored by public agencies was overbroad. While initiatives placed on the ballot due to voter -sponsored petition drives are exempt from CEQA review, initiatives placed on the ballot as a discretionary decision of the public agency are not. AB 3090 also moved the provision requiring the Resources Agency to prepare amendments to the State CEQA Guidelines from Public Resources Code § 21083 to Public. Resources Code § 21087. The amendments are still required to be prepared every two years. As explained below, the Resources Agency amended Section 15378 of the State CEQA Guidelines last September. The new language addresses the issue targeted by AB 3090. We have revised your Guidelines to reflect the revisions made by the Resources Agency to the State Guidelines, and no additional revisions are necessary to bring your Guidelines into compliance with this bill. Assembly Bill 2814 (AB 2814) AB 2814 relates to CEQA litigation procedures. This bill clarifies that the petitioner bringing a CEQA lawsuit is required to name as defendants only the public agencies that issued the approval and the recipients of the approval. Because AB 2814 relates only to litigation procedures, it does not require any changes to your Guidelines. SACRAMENTOUTBU 7360. t 59 LAW OFFICES Ce BEST BEST S KRIEGER LLP Assembly Bill 2922 (AB 2922) Previously, the statutes governing the use of Master EIRs required the preparation of Supplemental or Subsequent EIRs to analyze the impacts of such changes. AB 2922 changes the rules governing the use of Master EIRs to allow a lead agency to prepare a Mitigated Negative Declaration to analyze changes that have occurred, or new information that has surfaced, with respect to the circumstances under which a Master EIR was certified. Section 8.10 of your Guidelines has been revised to reflect these new changes to the law. Senate Bill 647 (SB 647) This bill extends the time that local agencies are required to retain Notices of Determination from 9 months to 12 months. Section 6.14 and 7.33 of your Local Guidelines have been revised to reflect this new requirement. SB 647 also restored definitions of "reuse plan' and "military base" that were inadvertently repealed by prior legislation. Senate Bill 945 (SB 945) SB 945 makes slight revisions to existing law regarding certain types of projects located within 'A mile of a school site. Previously, CEQA imposed certain requirements on projects proposing to construct or alter a facility that might reasonably be anticipated to emit hazardous or acutely hazardous air emissions or which would handle acutely hazardous materials, if the proposed location of the project was within 'A mile of a school site. SB 945 changed the terminology from "hazardous materials" to "hazardous substance" to make the statutory language more consistent with the hazardous substance laws contained in the Health and Safety Code. The minor changes to this statute are reflected in the revisions to Section 7.30 of your Local Guidelines. Senate Bill 1334 (SB 1334) SB 1334 requires counties to consider whether a project will result in conversion of oak woodlands in determining if a project will have a significant effect on the environment. Notably, SB 1334 does not apply to any public agencies other than counties. While SB 1334 defines 'oak," it does not define "oak woodlands." Presumably, though, the definition included in the Oak Woodlands Conservation Act would apply. The Oak . Woodlands Conservation Act defines 'oak woodlands" to mean "an oak stand with a greater than 10 percent canopy cover or that may have historically supportedgreater than 10 peimnt canopy cover." Fish & Game Code § 1361(h). If impacts to oak woodlands are identified, the county must impose one or more of the following mitigation measures: (1) conservation through the use of easements, (2) planting replacement trees or restoring former woodlands, though this can be used for only one-half of the total mitigation required, (3) contributing funds to the Oak Woodlands Conservation Fund, or (4) other mitigation measures as developed by the county for the project. SB 1334 does not apply to projects: (1) undertaken pursuant to a Natural Community Conservation Plan or subarea plan that covers oaks or protects oak woodlands in a SACRAMENTOUTB117360.1 -3- 60 uw OFFICES of BEST BEST S KRIEGER L.L.P manner that is consistent with the mitigation measures set forth above; (2) to construct affordable . housing in an urbanized area or sphere of influence; (3) involving conversion of oak woodlands on agricultural land that is used to produce or process plant and animal products for commercial purposes, or (4) projects that are subject to certified regulatory exemptions from CEQA. A new Section 5.16 has been added to your Local Guidelines to address this new law, and the defmitions of "oak" and 'oak woodlands" have been added as Sections 10.38 and 10.39. Also, for our county clients, their Initial Study forms (Form J) have been revised to include consideration of impacts to oak woodlands within the analysis of Biological Resources. Senate Bill 1889 (SB 1889) SB 1889 adds to the Public Resources Code a new section 21070, defining "trustee agency" as "a state agency that has jurisdiction by law over natural resources affected by a project, that are held in trust for the people of the State of California," and replaces text in Sections 21080.3 and 21104 to refer to this newly defined term. Previously, the Public Resources Code had not defined "trustee agency," perhaps due to oversight. The Legislature did not indicate any intent to overrule the defmition of "trustee agency" contained in State CEQA Guidelines Section 15386, which lists four trustee agencies: (1) the Department of Fish and Game, (2) the State Lands Commission with respect to state-owned "sovereign" lands such as the beds of navigable waters and state school lands, (3) the Department of Parks and Recreation with regard to units of the state park system, and (4) the University of California with regard to sites within the Natural Land and Water Reserves system: Interestingly, the substitution of the new term in Section 21104 actually limits the scope of agencies with which lead agencies must consult. Instead of consulting with any agency with any jurisdiction over the project, the lead agency must now consult only with responsible agencies, trustee agencies, and surrounding cities and counties. SB 1889 also made technical, nonsubstantive revisions to the statute and extended authorization for a special CEQA exception relating to a Master EIR prepared for specific development in the City of Oakland. Your Guidelines already included a definition of "trustee agency." (See Section 10.55.) That definition fully comports with the new law, so no changes to -your Guidelines were required. Senate Bill 1350 (SB 1350) SB 1350 repealed Section 21084.2 of the Public Resources Code, which had instructed the Office of Planning and Research (OPR) to consider whether to exempt from CEQA review projects for the treatment of medical waste by steam sterilization. Other, limited categorical exemptions pertaining to the construction of steam sterilization units remain in CEQA Guidelines Sections 15301(o) and 15303(f) and are unaffected by SB 1350. The scope of this bill was so narrow that it did not warrant changes to your Local Guidelines. sACRAMENTOlITI 17360.1 -4- 61 LAW OFFICES OF BEST BEST S KRIEGER tLP Senate Bill 1752 (Sit 1752) SB 1752 created specific exemptions from CEQA for the Northern California Youth Reception Center and Clinic in Sacramento and the Fred C. Nelles Correctional Facility in Whittier. The impa r of this law is limited to those specific locations, so we made no revisions to your Local Guidelines to reflect this legislation. Senate Bf7118 (SB 18) Senate Bill 18 ("SB 18") was originally introduced during the 2002-2003 legislative session as the traditional tribal sac red sites amendment to CEQA. However, the bill was amended several times during the legislative process, and by the time the Governor signed it, it no longer amended CEQA. Instead, it amends general plan law to require cities and counties to "consult" with California Native American Tribes as part of the adoption or update; to the local general or specific plan. The Bill changed California law in six ways. First, a city or county must consult with a California Native American Indian Tribe during the preparation or amendment of a general or specific plan. The tribes must be on the contact list of the Native American Heritage Commission. The purpose of the consultation is to preserve or mitigate impacts to Native American places; features and objects as described by statute. These places include Native American sanctified cemeteries, places of worship, religious or ceremonial sites, or sacred shrines. In addition, other places may include historical, cultural, or sacred sites that are listed or may be eligible for listing in the California Register of Historic Resources, including historic or prehistoric ruins, burial grounds, archaeological or historic sites. After notification by the local government, a tribe has 90 days from contact to request a consultation. During a consultation, local governments are directed to protect a tribe's confidentiality. SB 18 also provides a definition for the term "consultation." Second, in addition to the consultation requirement, a city or county must refer the proposed adoption or amendment of a general or specific plan to a California Native American tribe with traditional lands located within the city or county's jurisdiction. Tribes are given 45 days to comment on the proposed plan. Third, notices of a public hearing related to the adoption or amendment of a general or specific plan must be sent to a California Native American tribe that requests such notice. Fourth; SB 18 allows cities and counties to designate open space to protect Native American places, features and objects. Furthermore, if land designated to be open space contains a place, feature or object as described by statute, then SB 18 requires the city or county in which the place, feature or object is located to consult with the California Native American tribe. The tribe must fast give notice that it wishes to be included in such a consultation. Fifth, SB 18 adds language to the Civil Code that allows a federally recognized California Native American tribe or a nonfederally recognized California Native American tribe to hold a conservation easement to protect a Native American prehistoric, archaeological, SACRAMENTOU7BU 7360.1 -5- 62 LAW OFFICES OF BEST BESTS KRIEGER LLP cultural, spiritual, or ceremonial place. Previously, only local govemment agencies and nonprofit organizations eould hold such conservation easements. Finally, the Governor's Office of Planning and Research ("OPR") must develop Guidelines to assist cities and counties in implementing SB 18. OPR published these Guidelines on March 1, 2005 to comply with the statutorily mandated deadline, but OPR plans to reissue the Guidelines shortly. The current version of the Guidelines is a thorough 40-page instruction manual. The Guidelines include guidance on how to consult with Native American tribes in the following areas: (1) the preservation or mitigation of impacts to places features and objects belonging to California Native American tribes as described by. statute; (2) procedures to identify California Native American tribes through the Native American Heritage Commission; (3).procedures to protect the confidentiality of information concerning the specific identity, location, character and use of those places, features, and objects; and (4) procedures to facilitate voluntary landowner participation during the consultation process. The Guidelines include a helpful overview of the consultation process with a timeline of events that are expected to take place to fulfill SB 18's requirements. The Guidelines include suggestions on what a consultation may look like, how to proceed, and precautionary advice; they also provide guidance on pre- and post -consultation issues. Anyone interested in obtaining a copy may either write to OPR or download the document at http://www.opr.ca.gov/SB182004.html. 2004 CEOA CASELAW 1. Analysis of Impacts Associated with Wal-Marts and Other Big Box Retailers — Projects to construct Wal-Marts and other "big box" retail projects continued to supply. some of the most hotly contested CEQA litigation in 2004. Obviously, these projects raise social and economic issues as well as environmental ones, but CEQA is an environmental protection statute, and CEQA specifies that social and economic impacts are to be analyzed only to the extent that they cause or are caused by environmental impacts. As the cases summarized below demonstrate, courts are , struggling to draw the lines between social, economic, and environmental impacts and to fmd a workable rule defining the extent of environmental analysis that must accompany "big box" approvals. Maintain Our Desert Environment v Town of Apple Valley (Pluto Development, Inc.), 120 Cal. App. 4th 396 (2004). In this case, the Fourth District Court of Appeals rejected a claim that an EIR and the accompanying CEQA notices prepared for a 1.2 million square foot distribution center project in Apple Valley were defective because they failed to identify Wal-Mart as the center's tenant. The project challengers had argued that the EIR's project description had to state that the project was being built for use by Wal-Mart even though the applicant for the project approvals was Pluto Development, Inc., Wal-Mart's real estate arm. In a rare move, the California Attorney General filed a friend of the court brief in support of the project challengers. Nonetheless, the court held that CEQA does not require that the project description list the end user of the project. The court reasoned that CEQA is concerned solely with the potential environmental impacts of the project, and the social, economic, and business SACRAMEWTOUTB\17360.1 -6- 63 LAW OFFICES OF BEST BEST & KRIEGER LLP competition concerns associated with Wal-Mart are "not relevant" to CEQA analysis unless it has been demonstrated that those concerns would result in a significant effect on the physical environment. Substantial evidence supported the agency's decision that the benefits of the project outweighed the unavoidable environmental impacts to traffic, land use, noise, and air quality. Bakersfield Citizens for Local Control v. City of Bakersfield (Panama 99 Properties LLC) & Bakersfield Citizens for Local Control v. City of Bakersfield (Castle & Cooke Commercial -CA, Inc.),124 Cal. App. 4th 1184 (2004). In the Bakersfield case, the Fifth District Court of Appeal found the City of Bakersfield's EIRs for two separate large regional malls, each anchored by a Wal-Mart Supercenter, inadequate. First, the court faulted the EIRs for ignoring evidence presented by project opponents that the opening of the two shopping centers within four miles of each other would have the potential to cause "urban decay." These E1Rs declined to analyze, either individually or cumulatively, the ripple effect that the two shopping centers would have throughout the community once the Wal-Mart Supercenters opened. The city had taken the position that these effects were purely socioeconomic impacts, and CEQA does not require analysis of such effects. However, CEQA does require analysis of economic and social effects that cause physical changes in the environment. The project opponents claimed that the operation of the Supercenters would cause "retail saturation" that would kill smaller, existing local businesses, thus leading to vacant store fronts, unused retail space, and blighted areas surrounding the Wal-Mart stores. The court found that these constituted environmental effects that the EIRs should have analyzed Second, the court found the cumulative impacts analyses defective because neither one acknowledged the existence of the other shopping center projector considered the combined environmental impacts of the two shopping centers. This omission was fatal because: (1) the two shopping centers would compete with each other, which would only serve to exacerbate the impacts on urban decay; (2) the two shopping centers shared four roadways which would cumulatively impact traffic; and (3) the two shopping centers would cumulatively impact air quality. Third, the court faulted both documents' air quality analysis, which failed to link the adverse air quality impacts with their effects on people's health. While each EIR concluded that the shopping center analyzed in that document would cause significant and unavoidable adverse impacts on regional air quality, neither EIR discussed how these findings would translate into adverse health effects. The court directed that on remand, the new EIRs must consider the health consequences of the adverse air quality impacts. The court criticized procedural steps taken by both parties. The Bakersfield city council had certified the EIRs and adopted statements of overriding considerations on the "consent" calendar before the public hearings on the proposed approvals. The court noted that _ the city council's refusal to allow comments on the EIRs at the hearings on the land use approvals violated CEQA. The court also criticized the petitioner's "disastrous tactical choice" of failing to "diligently and expeditiously" seek a preliminary injunction. By the time petitioner filed for -7- SACRAMENTOV \17360.t LAW OFFICES OF BEST BEST S. KRIEGER LIP relief from the appellate court, construction on the shopping centers had proceeded so far that both shopping centers currently had some stores completely constructed and open to the public. The court denied the request for relief due to the equities involved with halting these ongoing businesses. However, because the two Wal-Mart Supercenters were each only partially built, the court enjoined the construction from continuing until the city has complied with CEQA. On remand, the court stated that it would presume the city would evaluate information from the new EIRs without giving any weight to the fact that the shopping centers are partially constructed, even to the point where some of the stores are already open to the public. Even at the shopping centers' late stage of development, the court ruled that the city still had the discretion, after deliberating over new environmental studies, to impose additional mitigation measures, other modifications, or even to require removal of the project. Remarkably, none of the parties to this decision sought review by the California Supreme Court, so the court's decision was left to stand as precedent. Consequently, cities and counties considering the approval of Wal-Marts and other "big box" stores should be prepared to address and analyze issues of "urban decay.'' The Redlands Ass'n v. City of Redlands (Redlands Joint Venture LLC), 2004 Cal. App. Unpub. LEXIS 5314 (2004), This unpublished case also involved a longstanding fight over proposed "big box" development, though the key issue in this case was whether CEQA applied to a settlement agreement resolving the dispute. The development involved in the underlying lawsuit was a 124-acre master -planned commercial development located within an area known as the "Donut Hole." (The area was named the Donut Hole because it is an unincorporated part of the County that is completely surrounded by the City of Redlands.) After years of legal wrangling between the city, the County of San Bernardino, and the Redlands Joint Venture LLC (RJV), all three entities entered into a settlement agreement which resolved a number of complex lawsuits and other disputes that had arisen between the city and County regarding RJV's proposed commercial development of the Donut Hole. Among other things, the project challengers contended that the public agencies' approval of the settlement agreement was a discretionary act that was subject to CEQA review. The challengers claimed that the settlement agreement was a project under-CEQA because the settlement agreement committed the parties to a definite course of action relating to the Donut Hole and the development. Specifically, the city agreed not to force the Donut Hole area to obtain its water and sewer services from the city. In an unpublished opinion, the Fourth District Court of Appeals upheld the public agencies' determination that execution of the agreement settling their various land use disputes was not a "project" pursuant to CEQA. Although the decision cannot be cited as precedent, it is helpful because it instructs that a public agency's approval of a settlement agreement to resolve litigation may be exempt from CEQA review if the agreement does not commit the agency to a future course of action that would lead to a potential for environmental impacts. In such cases, we recommend that the public agency file a Notice of Exemption with the County Clerk detailing why the adoption of the agreement is exempt. On the other hand, if a settlement SACRAMENTOU7B117360.1 -8- 65 LAW OFFICES OF . BEST BEST & KRIEGER LLP agreement does commit the agency to a particular course of action, then the agency should determine whether the agreement triggers the need for additional CEQA review. 2. Aesthetic Impacts and Neighbors' Comments as Substantial Evidence to Defeat a Negative Declaration — Each year, more CEQA cases are filed by neighbors who are opposed to particular projects. A number of these cases consider whether issues raised by lay people constitute "substantial evidence" to support a fair argument of a significant environmental impact, thereby requiring preparation of an EIR before the project can be approved. Unfortunately, the cases are all over the map; there does not appear to be any clear trend in this area of law. An especially tricky area is that of aesthetics, which is a largely subjective category. Several of the aesthetics cases released this year are in direct conflict with each other. The only thing certain about these issues is that they promise to be some of the most hotly contested CEQA issues for years to come. Ocean View Estates homeowners Association, Inc. v. Montecito Water District,116 Cal. App. 4th 396 (2004). In Ocean View Estates, the court found that the Montecito Water District should have prepared an EIR, rather than a Mitigated Negative Declaration; to analyze the impacts resulting from its proposal to cover its Ortega Reservoir with an aluminum roof. The four -acre reservoir is located in Santa Barbara County and supplies potable water to local communities. Under the urging of the Department of Health Services, the District determined to cover the reservoir to guard against water quality problems. After the District completed its Initial Study of the potential environmental impacts associated with covering the reservoir, the District decided to issue a MND instead of preparing an EIR.. The Initial Study found no significant impact to aesthetics. However, the Initial Study found that flooding could potentially be a problem because the project would increase the amount of impervious surface area, which would increase runoff. The District issued a MND, stating the project would incorporate' design measures to prevent excess runoff. Those measures included retaining the runoff at the reservoir site. Ocean View Estates Homeowners Association challenged the MND, contending, among other things, that the MND failed to recognize the project's significant aesthetic impact: Again, based on expressions of concern from local residents, the court overturned the Negative Declaration. The record demonstrated that besides thecomplaints from several local residents that the reservoir cover would be seen from their homes, the Santa Barbara County Planning and Development Department also had recommended that mitigation measures should include landscaping and painting to obscure views of the cover from public trails. The court concluded that in a subjective case such as the view of a reservoir cover, the concern of local residents combined together with the concern from the County was enough to establish substantial evidence to support a fair argument that the project may have a significant adverse aesthetic impact on the environment. The District argued that local residents do not have a commonlaw right to an unobstructed view. While agreeing with the District, the court distinguished the commonlaw viewshed doctrine from a project's aesthetic impacts, which must be analyzed and mitigated under CEQA. Because the neighbors had raised a fair argument that the project could have significant aesthetic impacts, the District was required to prepare an EIR. SACRAMEN1nU7B\17360.1 -9- 66 LAW OFFICES of BEST BEST a KRIEGER LIP Mira Mar Mobile Community v. City of Oceanside (CH Oceanside),119 Cal. App. 4th 477 (2004). Mira Mar concerns the proposed development of a 96-unit condominium development on 7.5 ages within the City of Oceanside's Downtown Redevelopment Project Area. As proposed, the project would consist of two buildings with a view corridor in between them and underground parking. The density would be 28.3 units per acre. After preparing and certifying a Supplemental EIR, which tiered off of several prior EIRs prepared for the redevelopment plan, the city approved the project. The project was then challenged by Mira Mar Mobile Community, a 173-unit mobile home park located immediately adjacent to the north side of the project site. Among other things, MMMC contended that the EIR inadequately analyzed aesthetic impacts because the project would block its view of the ocean. The court rejected this argument, fmding that the CEQA only requires analysis of whether a project will have significant environmental impacts on people in general, not whether it will affect particular individuals: Furthermore, the city had previously determined, in its local coastal program, that only an impairment of public views, not private views, would constitute a significant environmental impact. Noting that the significance of an aesthetic impact depends on the nature of the affected area, the court found that the city appropriately determined that impairing MMMC's private views was not a significant adverse impact on the environment. Bowman v. City of Berkeley,122 Cal. App. 4th 572 (2004). In this case, the First District Court of Appeals upheld the City of Berkeley's decision to approve a four-story mixed use project which included retail space and 39 affordable apartments for low-income seniors. The project will be located at the comer of Sacramento Street, a four -lane divided boulevard which is one of the city's busiest streets, and Blake Street; which is largely residential. Presently, the lot has a vacant one-story building which had previously been used for a clothing store. Neighbors who live in residences on Blake Street contended that the city erred in adopting a Mitigated Negative Declaration rather than preparing an EIR for the project. The neighbors argued that the building was too large to be aesthetically compatible with the area because it would cause shadowing impacts to their adjacent properties, interfere with their scenic views, and generally be visually incompatible with the surrounding neighborhood. Several local architects testified in support of the neighbors' challenge. The court noted that the neighbors had previously approved a three-story building for the project, and their complaint essentially consisted of their disagreement with the addition of a partial fourth story on the Sacramento Street side of the building. Essentially, the neighbors' criticism was that the building was one story too tall. Based primarily on the project's urban context and location, and the fact that the project had undergone an extensive design review process to mitigate its visual impact, the court rejected the neighbors' claims. If the developer had proposed to construct the project in a rural location along "virgin hillsides," then the aesthetic effects of the project might constitute a significant visual impact. But the court emphasized that this project was located in an area that -10- SACRAMENIplrra117360.I 67 lAW OFFICES OF BEST BEST & KRIEGER 11P was already highly developed, not within any kind of environmentally sensitive area. Citing Mira Mar Mobile Community v. City of Oceanside, the court reasoned that the project's obstruction of a few private views is not a significant environmental impact. The court also noted that aesthetic issues are ordinarily the province of local design review, and the city had already found that the project would not substantially degrade the visual character of the area because the project had been subjected to extensive design review. Accordingly, the court held that "[w]here a project must undergo design review under local law that process itself can be found to mitigate purely aesthetic impacts to insignificance, even if some people are dissatisfied with the outcome. A contrary holding that mandated redundant analysis would only produce needless delay and expense." Ultimately, the court: concluded, "The aesthetic difference between a four story and a three story building on a commercial lot on a major thoroughfare in a developed urban area is not a significant environmental impact, even under the fair argument standard." Simply put; the Legislature, in enacting CEQA, did not intend to require an EIR where the sole environmental impact was the aesthetic merit of a building in a highly developed area: At least within the context of an urban setting, the process of undergoing design review under local law may itself be enough to mitigate purely aesthetic impacts to a level of insignificance, even in the face of significant neighborhood opposition The neighbors also opposed the Negative Declaration on the ground that the migration of soil contaminants from underground storage tanks on the project site would have a significant effect on the environment. In support of this contention, the neighbors presented an expert analysis of the site's soil test reports that one of them had performed. This person found the previous soil and groundwater reports concerning the site's contamination incomplete, but city staff discounted his opinion because he had previously misrepresented facts in unrelated city proceedings regarding his own property. The court upheld the city's determination that the neighbor's lay reading of the reports did not constitute substantial evidence, especially on technical environmental issues. The court also found that the city appropriately exercised its discretion to discount the this person's credibility, given city's staffs knowledge of his prior misrepresentations. Thus, the court found that neighbors failed to present any substantial evidence that would support a fair argument that hazardous materials from the project would pose a significant effect on the environment. Architectural Heritage Assn. v. County of Monterey,122 Cal. App. 4th 1095 (2004). In this case, the Sixth District Court of Appeal concluded there was substantial evidence to support a fair argument that the planned demolition of Monterey County's Old Jail would result in the loss of the jail's historic value and that the proposed mitigation measures were inadequate to mitigate the impact below a level of significance. The Old Jail, located in Salinas, was built in 1931 using Gothic Revival style architecture_. In 1970, Cesar Chavez was incarcerated there for about two weeks after he refused to obey a court order to halt the United Farm Workers' lettuce boycott. During his incarceration, Mr. Chavez was visited by Coretta Scott King and Ethel Kennedy. The court noted that many people feel Mr. Chavez' incarceration may have been a turning point in the farm -worker movement: However, the Old Jail is outdated by current penal standards, and the County stopped using the building as a jail during the 1980s. In 1999, the County proposed to demolish the Old Jail. SACRAMFII TOV1B117360.1 -11- 68 LAW OFFICES of BEST BEST S KRIEGER LLP The Old Jail is not officially listed on California's Register of Historic Resources. However, the Comity's consultant concluded that the building probably could qualify as eligible for listing, and the Initial Study concluded that the Old Jail is a significant historical resource. The County proposed to mitigate for the demolition of the Old Jail by: (1) photographic documentation of the building to standards identified by the Historic American Building Survey, (2) preparation of a historic monograph, (3) reuse of architectural elements from the building, and (4) filing a complete set of architectural blueprints at the local historical society, among other places. With these mitigation measures, the County concluded that any adverse impacts to historical resources would be mitigated to less than significant. Thus, the County adopted a Mitigated Negative Declaration, even though the County's own Historic Resources Review Board unanimously felt the Initial Study and its mitigation measures were insufficient and believed the County should prepare an EIR: Among other things, the Architectural Heritage Association challenged the County's finding that the mitigation measures contained in the MND reduced the environmental impacts of the Old Jail's demolition to a less than significant level. Quoting from League for Protection of Oakland's etc. Historic Resources v. City of Oakland, 52 Cal. App. 4th 896 (1997), the court stated that "Mhe proposed demolition of the building can hardly be considered anything less than a significant effect." "As drawing a chalk mark around a dead body is not mitigation, so archival documentation cannot normally reduce destruction of an historic resource to an insignificant level. Documentation of the historical features of the building and exhibition of a plaque do not reasonably begin to alleviate the impacts of its destruction. A large historical structure, once demolished, normally cannot be adequately replaced by reports and commemorative markers. Nor, we think, are the effects of the demolition reduced to a level of insignificance by a proposed new building with unspecified design elements which may incorporate features of the original architecture into an entirely different shopping center." Accordingly, the Sixth District concluded that there was substantial evidence to support a fair' argument that the County's proposed mitigation measures were inadequate to reduce the impacts to historic resources below a level of significance. The court stated that, in cases such as this, an E1R is required to both identify and examine the full range of feasible mitigation measures and alternatives to demolition. The Pocket Protectors v. City of Sacramento (Regis Homes of Northern California, Inc),124 Cal. App. 4th 903 (2004), review denied. In Pocket Protectors, the Third District Court of Appeal rejected the City of Sacramento's use of a Mitigated Negative Declaration to study the impacts of a housing project in the tony "Pocket Area." The proposed development consisted of double rows of houses flanking a narrow, mile -long alley; some of the houses would be built within six feet of the back yards of existing upscale residences. Angry neighbors testified that the developer was "cramming" too many homes into an area inadequately designed and sized for such a project.' The court agreed with the neighbors, fmding that they had introduced substantial evidence to support a fair argument the project would have significant impacts to land use and planning as well as aesthetics. Regarding the land use policies, a Specific Plan, the 1986 "L&P --- Pacific Teichert Planned Unit Development," had been approved for the project site. The resolution approving the PUB declared itself binding on all persons developing property within SACRAME TOVIBM7360.1 -12- 69 'LAW OFFICES OF BEST BEST S KRIEGER LLP the area and stated that all development had to conform to the LPPT Development Guidelines. The PUD had zoned the project site for townhouses, not the detached single family houses that were proposed_ The PUD required a change of zoning to build detached single family houses on the project site, a change which Sacramento had never undertaken. The court found that these land use policies had been adopted in part to mitigate environmental impacts. Therefore, the city was required to consider the project's compatibility with these land use policies in its CEQA process. The court found that the project conflicted with several of the PUD's guidelines, and that, in and of itself, constituted sufficient substantial evidence to support a fair argument that the project would have significant effects on the environment. Moreover, in the Initial Study as well as orally during the environmental review process, city planning staff admitted that the project did not fulfill the intent of the planned unit development land -use designation with respect to the landscaping and open space concepts therein, the Planning Commission made fmdings of fact concluding that the project did not comply with the PUD's design objectives or "sound principles of land use, and numerous members of the challenger group testified to their relevant personal observations of the incompatibility of the project's design with the project site and surrounding neighborhood. The court also relied on the opinions of area residents familiarwith the site in finding there was substantial evidence that the project could have a significant aesthetic impact. The Pocket Protectors' concerns included the tunneling effect resulting from two sets of mile - long double rows of houses that would border narrow streets, the lack of shade trees and landscaping and the absence of yard setbacks. The court concluded that the Pocket. Protectors' relevant personal observations alone constituted enough substantial; evidence related to aesthetic impacts to require an EIR. Even if others disagreed with the Pocket Protectors' observations, . that disagreement failed to deflate the substantial nature of the Pocket Protectors' evidence, which is all that is necessary to require an EIR. The court distinguished Bowman v. City of Berkeley on the ground that Bowman dealt with a single four-story building located on a busy boulevard in a commercial area of Berkeley. Without further elaboration, the Third District Court of Appeals stated Bowman was inapposite because the project in, Pocket Protectors contemplated numerous buildings within a residential neighborhood. 3. Scope of CEQA Analysis — 2004 saw three important decisions regarding the scope of the analysis CEQA requires.. In one decision, the Third District Coutt of Appeals provided clarification about 2003's Communities for a Better Environment v. California Resources Agency decision and the scope of a lead agency's duties to analyze potential environmental impacts. Another court gave guidance on the proper geographic scope of an agency's cumulative impacts analysis, while two other decisions elaborated on the appropriate definition of the environmental baseline. Protect the Historic Amador Waterways v. Amador Water Agency,116 Cal. App. 4th_ 1099 (2004).. In this case, the Third District Court of Appeals held that the lead agency's environmental documents must consider every fair argument that can be made about possible -13- SACRAMENrOUTRU7360.1 70 cnw OFFICES OF BEST BEST E. KRIEGER LLP significant environmental effects of a project, not just the categories of information contained in Appendix G's sample thresholds of significance. Amador Water Agency had prepared an EIR to evaluate the environmental effects of a pipeline that it proposed to construct in order to replace a portion of an unlined earthen canal. The Draft EIR noted that surface flow in six local streams was increased in varying degrees by leakage from the Canal, and, in fact; the Canal may have been totally sustaining some of the streams during dry years. The EIR acknowledged the pipeline would eliminate the leakage from the Canal and that local streams "would return to their historical hydrological conditions." However, the EIR simply concluded that changing the hydrology associated with dewatering the Canal; and eliminating all leakage, was `riot considered to be a significant hydrological impact per se. The hydrological changes may have effects on other resources dependent on hydrology, for example, water quality or wildlife, and these effects are discussed elsewhere in the [EIR]. Consequently, changes in hydrology are not significant." The EIR later concluded that the impact of the pipeline would be less than significant to wetlands and riparian habitats as well. Petitioner challenged this EIR, alleging that the Agency had improperly relied exclusively on the thresholds of significance derived from Appendix G and had ignored petitioner's fair arguments of the project's other significant impacts, such as the dewatering of local streams that had been fed by the canal leakage for more than 130 years. Elaboratingon its discussion of thresholds of significance in Communities for a Better Environment v. California Resources Agency, 103 Cal. App. 4th 98 (2002), the Amador court noted that thresholds of significance are not used just to determine whether an EIR should be prepared. Rather, thresholds of significance are also used during the preparation of an EIR to determine whether'- the possible environmental impacts of the project will be significant. The Amador court therefore reasoned that the application of thresholds of significance in the EIR analysis cannot be an automatic, mechanical determination. Notwithstanding the project's compliance with a relevant threshold of significance, the lead agency must still consider whether a certain environmental effect might be significant in the circumstances of each particular case. If there is any substantial evidence to support a fair argument that the project could have significant environmental impact, an EIR must be prepared to analyze that potential effect. Thus, according to the Amador court, the lead agency must consider every fair argument that can be made about the project's possible significant environmental effects. Applying this rule, the court accepted petitioner's argument -that the EIR was inadequate for failing to evaluate whether the seasonal reduction of surface flow in nearby streams was environmentally significant. The court directed the Agency to rewrite its EIR to provide analysis of this issue. Thus, the court indicated that it is not sufficient for lead agencies to rely on the Initial Study checklist provided in Appendix G of the State CEQA Guidelines. Rather, lead agencies, must go beyond Appendix G and conduct all analysis warranted by the facts of the particular project and its circumstances; environmental documents must include all environmental analysis warranted by the particular situation. Ebbetts Pass Forest Watch v. Department of Forestry and Fire Protection (Sierra Pacific Industries),123 Cal. App. 4th 1331(2004). In this case, the First District Court of Appeal upheld the Department of Forestry and Fire Protection's approval of six timber harvesting plans (THPs) for El Dorado and SACRAMENI'OUTI3117360.1 -14- 71 uw OFFICES or BEST BEST S KRIEGER LLP Calaveras counties. Similar to an EIR, a THP must include an analysis of environmental impacts, including cumulative impacts, resulting from the proposed timber harvesting. Relying on studies published by the United States Forest Service, petitioners claimed the Department had misidentified the geographic assessment area for the THPs and thus had understated the cumulative impacts associated with the plans. Specifically, petitioners maintained that the assessment areas chosen by the Department, which ranged from 3,437 to 20,773 acres, were too small because the Forest Service studies suggested the appropriate area for determining impacts to spotted owls was much larger, possibly the entire Sierra Nevada Mountain Range. Thus, petitioners contended, the THPS did not adequately analyze the projects' cumulative environmental impacts. Like EIRs, THPs are reviewed under the abuse of discretion standard. Reviewing the THPs under this deferential standard, the court rejected petitioners' challenge. In doing so, the court relied heavily on Kleppe v. Sierra Club, 427 U.S. 390 (1976), which specifically, considered assessment areas within the context of coal mining. In Kleppe, the Supreme Court concluded that determining appropriate assessment areas involved multiple factors, complex interrelationships, balancing considerations and feasibility issues. Consequently, the Supreme Court determined that the determination of an assessment area implicates the agency's technical expertise, and, absent a showing that the agency abused its discretion, courts should defer to the agency's fmdings. Applying Kleppe, the court noted the extraordinary size of the administrative . record and the fact that the record included all of the Forest Service documents that petitioners argued the Department had improperly ignored. Both the THPs and the responses to comments extensively discussed the scope of the assessment areas. Specifically, in responding to comments raised by the petitioners, the Department noted, among other things, that defming the assessment area to include the entire Sierra Nevada would not be "practical or reasonable," "there are countless other land use decisions being made and changed all the time on other ' private and public land holdings within an assessment area the size of the entire Sierra Nevada," and that "the size of an area to be analyzed for cumulative impacts should notbe so large as to cause the particular TIP project under discussion to be lost and the impacts of that particular TIP to be so small as to disappear." Agreeing with the Department's rationale, the court found that an overinciusive assessment area could dilute the significance of any adverse environmental impacts caused by the proposed timber harvesting. The court noted that, on the other hand, if the assessment area selected is too small, then impacts caused by the proposed project could be overstated. The Department was not required to "slavishly adhere to [the Forest Service's] findings as to the appropriate size of. the Department's assessment area. The court reasoned that, essentially, the dispute amounted to a disagreement among experts, and the Department was free to reject the Forest Service's fmdings as long as it had a rational basis for selecting the approach it chose. Because the standard of review is deferential, it is not appropriate for the court to reweigh the evidence considered by the agency. By analyzing the various viewpoints and selecting an assessment area based on a rational consideration of the relevant evidence, the Department proceeded in the manner required by law. SACRAM ENTOV [B\17360.1 -15: 72 uw OFFICES OF BEST BEST S KRIEGER LLP Petitioners also contended that the Department failed to "meaningfully respond to public comments regarding both the size of the assessment area and cumulative impacts. . Again, the court disagreed. The court pointed to the administrative record to demonstrate that the Department provided thoughtful, analytical responses to all of the significant environmental issues. While petitioners alleged the Department's responses were "conclusory," petitioners were actually challenging the substance of the Department's conclusions about the scope of the assessment area, rather than whether the Department considered the contrary viewpoints raised in petitioners' comments. CEQA did not require the Department to accept petitioners' arguments. All that was required was that the Department consider petitioners' comments and provide responses explaining its position, which it did. Therefore, the court found that the Department adequately responded to comments. Finally, petitioners argued that the THPs did not adequately assess the impacts of herbicide use because the information provided was not site -specific. The court rejected this argument, finding that it was infeasible for the THPs to specify the exact usage and location of a particular herbicide within a MP because that decision revolves around factors that do not emerge until after the logging is completed. The Department's responses to comments extensively discussed the possible impacts of herbicide usage; albeit in general tertns. While this discussion was general rather than specific, the analysis was as detailed as it could be at this stage of the project. Accordingly, the court found that the analysis of herbicide usage was adequate and there was substantial evidence to support the Department's conclusion that no significant adverse environmental impacts would result_ El Dorado County Taxpayers for Quality Growth v. County of El Dorado (Cool Cave Quarry, Inc.,122 Cal. App. 4th 1591(2004). In El Dorado, petitioners sought to overturn the County's decision to adopt Negative Declaration and approve a reclamation plan to address the effects of longstanding prior mining activities on the project site. Best Best & Krieger's Derek Cole successfully defended against this attack, obtaining a decision from the Third District Court of Appeals confirming that the County properly limited its environmental review to the impacts resulting from the reclamation plan rather than effects stemming from the underlying, mining activity. The quarry involved in this case -had been mined since 1910 and had been in continuous mining activity since 1946. Consequently, the mining activity constituted a legal, nonconforming use and a vested mining right ptirsuantto the Surface Mining and Reclamation Act of 1975 (Pub. Resources Code §§ 2710, et seq., "SMARA".) Even though the property owners had a right to mine, they were required under SMARA to prepare reclamation plans to address how the land will be restored after the mining activity is ceased. The challenged reclamation plan represented an update to a previously approved plan. Because the property owner was considering expanding its mining operations onto an adjacent 16-acre previously mined trail of federal land, the County determined that the reclamation plan should include the reclamation of these 16 acres as well as the original property. Petitioners contended the initial study impermissibly failed to consider the entire project because it did not evaluate the impacts of the potential future mining activity. The court rejected this argument, finding that the relevant project was the County's reclamation plan, not $ACR WENTOU IA17360.1 -16- 73 LAW OFru.ta OF BEST BEST & KRIEGER LLP the proposed mining expansion. The court repeatedly emphasized that the proposed expansion of mining onto the government's 16 acres would itself be subject to future environmental review. During the process for obtaining a lease of the government mining lands, there would be ample opportunity to review the environmental impacts associated with leasing the government. -owned mines to a new operator. In fact, any expansion of the mining project would be subject to a host of legal and political constraints and could not be approved by the County's mere adoption of a reclamation plan that might cover the expansion site, if the expansion were ever authorized. Moreover, the decision whether to expand mining activities onto the federal lands was independent of the adoption of the reclamation plan update. The reclamation plan included the proposed expansion lands only because it was more efficient to include them, but the operator had not obtained any of the approvals necessary before it could actually mine those lands. Even if the plan was approved, the proposed expansion might not proceed. Based on all of these facts, the court concluded that "the project description [was] adequate in specifying the type of mine, the type of mining disturbance, the size of the project, the actions that will comprise the reclamation, the environmental and other goals of those actions, and the nature of the land and its uses after reclamation." The court also rejected petitioner's argument that there was substantial evidence to show potentially significant environmental impacts resulting from the proposed project because the impacts cited by petitioner were caused by mining operations, not the approval of the proposed reclamation plan. The court approved the County's conclusion that approval of the reclamation plan would improve environmental conditions because reclaiming the land and closing the quarry would reduce traffic, air emissions, and other environmental impacts, as compared to existing conditions with ongoing mining operations. El Dorado may prove helpful outside the reclamation context, as it continues the recent line of cases affirming that pre-existing environmental conditions constitute the, starting point for the environmental impacts analysis, even when the pre -project conditions include conditions that have been extensively altered from the state -of -nature. (See our 2003 and 2002 annual CEQA update memoranda for a discussion of other recent baseline cases, such as Save Our Peninsula v. Monterey County Board of Supervisors and Fat v City of Sacramento.) If the court had not accepted the County's definition of the scope of the project and the baseline environmental conditions, this case might well have come out differently because the evidence petitioners presented could have been found to meet the "fair argument" standard and defeat the County's Negative Declaration. However, consistent with prior caselaw, the court appears to have accepted the County's definition of the project and the baseline under the more deferential substantial evidence standard. Muzzy Ranch Co v. Sokoto County Airport Land Use Corwin., formerly 125 Cal. App. 4th 810 (2005), review granted, depublished. Muzzy Ranch has been.depublished because the Supreme Court will be reviewing this case. The Appellate Court's decision is discussed here to give you some idea of the issues facing the Supreme Court. Muzzy Ranch concems an exemption that the Solano County Airport Land Use Commission adopted for the Travis Air Force Base Land Use Compatibility Plan ("TALUP"), SACRAMENTOUTBU 7360.1 -17- 74 I LAW OFFICES OF BEST BEST & KRIEGER LLP which effectively froze growth rates in the area around Travis Air Force Base. Muzzy Ranch Co., which owns thousands of acres in the vicinity of the plan, challenged this exemption. The Court of Appeal ultimately agreed that the Commission should have prepared an EIR because of the potential physical change to the environment that may occur from displaced development Among other things, TALUP froze future development around Travis Air Force Base at the existing growth rates of the county's and surrounding cities' general plans: The Commission determined that TALUP was not a "project" subject to CEQA and filed a notice of exemption. Muzzy Ranch contended that the Commission should have prepared an EIR because TALUP would cause an indirect physical change to the environment: by freezing the growth rate in the area surrounding the airport, TALUP would necessarily cause increased housing development in other areas of the region. The Court of Appeals held that the adoption of TALUP is like the adoption or amendment of a local agency's General Plan. Because TALUP places larges areas of land "off- limits to future residential development," long term land use impacts and population distribution throughout the region would result. By freezing the growth rate within the TALUP area, TALUP would effectively displace development into other areas. Because housing displacement is a physical change to the environment, the court concluded that the Commission should have prepared an E1R. The Supreme Court will now take up the case to determine whether the Court of Appeals' reasoning was correct. 4. Agricultural Mitigation Issues — One of 2004's more important CEQA decisions was actually anon -decision, the Supreme Cotes depublication of the Friends of the Kangaroo Rat case. This case had held that offsite conservation easements do not constitute effective mitigation for the conversion of agricultural lands, since the project is reducing the total amount of agricultural lands_ Agricultural mitigation issues also surfaced again in the Fourth District's Defend the Bay case. Friends of the Kangaroo Rat v. Cahlornia Department of Corrections,111 Cal. App. 4th (2003), depublished, 2004 Cal. LEX1S 1234. One of the cases noted in your 2004 legislative and judicial summary memorandum was the Fresno Kangaroo Rat decision. When the memorandum was distributed, the petition to depublish the appellate court's decision was still pending before the California Supreme Court. Decisions that are depublished cannot be relied upon as valid precedent. In a rare move, the California Supreme Court has ordered depublication of that Fifth District Court decision. (2004 Cal. LOGS 1234.) Had the published case remained standing, it would have had far-reaching impacts regarding the feasibility of using off --site conservation easements to fully mitigate a project's agricultural impacts under CEQA. The Fifth District had upheld the agency's determination that this commonly used method of mitigation would not fully mitigate the project's impacts because there would still be a net loss of the state's total agricultural land as a result of the project. Based on the Supreme Court's depublication of that decision, however, it appears clear the court looks favorably upon the use of off -site conservation easements as a form of mitigation for impacts to agricultural resources. This form of mitigation is also routinely used to mitigate for a project's impacts to biological resources and habitats. SACRAMENTOUTB1,17360.1 -18- 75 LAW OFFICES of BEST BEST S KRIEGER LLP Defend the Bay v City of Irvine (The Irvine Company),119 CaL App. 4th 1261(2004). In Defend the Bay, the Fourth District Court of Appeals held that the City of Irvine had substantial evidence to support the conclusions in its EIR for the development of the Northern Sphere. While the individual issues of the appellate opinion dealt with the project's housing, agricultural, and biological impacts, the court's overall theme was that a policy disagreement with a local public agency does not equate to a lack of evidentiary support for the conclusions'in its EIR. Irvine's EIR analyzed the impacts for developing the 7,743-acre site known as the . Northern Sphere, which is an area northeast of the former Marine Corps Air Station at El Toro, under a proposed General Plan amendment. Defend the Bay contended that the EIR did not contain sufficient evidence to conclude that it was not feasible to mitigate the impact of developing 3,100 acres of agricultural land. While the EIR did conclude that the conversion of this prime farmland was a significant and unavoidable adverse impact, it found that mitigating the impact would not be feasible because the future of long-term agriculture in Orange County was not economically viable. Moreover, reducing the size of the development to preserve agriculture, the EIR concluded, would only exacerbate hvine's job/housing imbalance. Therefore, Irvine rejected any mitigation of the agricultural lands conversion as infeasible for economic and other reasons. The court rejected Defend the Bay's challenge to this decision, finding that Defend the Bay's position simply consisted of a policy disagreement which, by itself, could not invalidate the EIR's conclusions. Defend the Bay also contended that the EIR did not contain sufficient evidence to support the conclusion that the Project would not have a significant adverse impact on housing or employment growth. Irvine did not dispute the Project's design created more jobs than housing; the EIR projected a 1.44 jobs to housing ratio. But with Irvine's present ratio at 3.29, the E1R' concluded the Project would actually improve the jobs to housing situation in Irvine. Thus, while the EIR found the impact to housing would be substantial, it actually concluded the impact would not be adverse. Defend the Bay argued that because the 1.44 ratio would exacerbate the housing shortage, the EIR should have concluded the impact to be significant and adverse. The court sided with Irvine, again concluding that Defend the Bay's argument essentially represented a policy disagreement with Irvine. 5. Analysis of Water Supply Impacts — Water supply impacts continue to be an area of vulnerability for CEQA analysis. In three cases considering this issue, the Third District Court of Appeal gave mixed results. On one hand, the court rejected CEQA analysis of an application to bank and transfer water, finding that more specific information about the ultimate destination and use of the water was required. On the other hand, the court approved a water supply assessment for development based on specific water supply acquisition plans and upheld the use of Negative Declarations to effect a transfer of water that had previously been analyzed in a city's General Plan EIR. Central DeltaWater. Agency v. State Water Resources Control Board (Delta Wetlands Properties), 121 Cal. App. 4th 246*(2004), review denied. In this case, the Third District Court of Appeal overturned the State Water Resources Control Board's decision to approve water appropriation permits for Delta Wetlands -19- SACRAMEN7'01TPB117360.1 76 LAW OFFICES of BEST BEST S KRIEGER LLP Properties, which had planned to store water in reservoirs created on two islands in the Delta so that it then could sell the water later. Essentially, Delta Wetlands proposed to create a water bank. The court concluded, however, that the permits were invalid under the California Water Code because they failed to specify the actual, intended use of the water, the amounts of water to be used and the places of use of the sold water. The permits only listed very broad purposes and places of use. Remarkably, the court concluded that Delta Wetlands must demonstrate to the State Board not only that it has contracted to provide the water to a specific customer, but also that it has obtained approval for the conveyance facilities necessary to transport the water to that customer. The court further found that the CEQA analysis was defective because it failed to analyze the ultimate users and uses of the water. While the court agreed with the State Board that EIRs do not need to conduct a thorough analysis of speculative issues, the court reasoned that when Delta Properties identifies the actual users and purposes and places of use, then the State Board must conduct a more detailed analysis of the environmental impacts of the project before reconsidering the permits Vineyard Area Citizens for Responsible Growth, Inc. v City of Rancho Cordova (Sunrise Douglas Property Owners Assn.), 2005 Cal. App. LEXIS 349 (2005). Vineyard is the fast case approving an EIR's fording of adequate water supply for a proposed development project based on future water supply development plans. The proposed development contemplated the conversion of 6015 acres into a combination of residential and commercial uses, including approximately 22,500 dwelling units: Initially; the developer proposed to supply the project with groundwater, but this fell through upon the discovery of groundwater contamination just north of the project site. The water supply plan and the E1R were then revised and recirculated. Under the revised plan, both development and water supplies would be phased. In the fast phase, water would be supplied by a groundwater well field which had been moved to five miles south of the project site to distance the groundwater pumping from the contamination plume. Under an existing Water Fonun Plan which governed regional groundwater use, the amount of water that could be pumped from the well field would be limited. In the second phase, water would be supplied by the' Zone 40" plan. Although this plan is not complete and is presently undergoing environmental review, it is intended to exact fees from future development to pay for new water facilities. The water agency had recently secured water supply contracts to supply water through both the WFP and the Zone 40 programs, and another contract was still being negotiated. Importantly, development of the project was capped by the amount of available water supplies: before building could occur, water must be available. The court distinguished this phased approach from the cases where an EIR completely failed to identify potential sources of water for projects. Here, the revised EIR did identify water sources, even if incomplete, and discussed a reasonable range of water supply scenarios. The court cited approvingly to Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342, 373, "which suggests that an EIR is adequate if it identifies and analyzes potential sources of water even though the final availability of those sources is not confirmed." Consequently, the court affirmed that the EIR's analysis of the project's water supply plans were adequate. SACRAMENTOV 1B117360.1 -20- 77 I.Aw OFFICES OF BEST BEST S. KRIEGER LLP The court also severely criticized petitioners' briefmg, noting that petitioners did not "fairly state" the facts and made many misrepresentations. Consequently, the court concluded that petitioners had not properly raised their legal issues and their evidentiary claims were subject to forfeit. Furthermore, the court criticized petitioners for failing to discuss, or even acknowledge, the trial court's opinion. Although the trial court's opinion was not binding on the appellate court, that did not make it irrelevant. Even when the appellate court reviews the case de novo, as it does in CEQA cases, the appellant must present the facts fairly and discuss the reasons why the lower court's decision is wrong. Sierra Club'v. West Side Irrigation District, 2005 Cal. App. LEXIS 619 (2005). The Third District Court of Appeal recently found that that two water districts complied with CEQA when they adopted Negative Declarations for projects involving the transfer of Central Valley. Project water to the City of Tracy. The court held that the city's prior EIR for its General Plan provided adequate analysis for any potential environmental impacts caused by the water transfers, and no new EIR was required. The city adopted a General Plan to establish policies and goals for the expansion of the city and the acquisition of additional water resources. The General Plan included a policy requiring the city to reduce its reliance on groundwater and instead fmd surface water sources to meet future owls. The city prepared an EIR which analyzed the potential environmental impacts of the General Plan, including impacts associated with the city's growth and increased reliance on surface water sources. In 1993, following the completion of environmental review, the city adopted the General Plan. Eight years later, in 2001, the city negotiated water transfers by which it obtained surface water from Central Valley Project contractors. Negative declarations were adopted for both transfer agreements. The Sierra Club challenged the approvals, claiming that the Districts should have prepared a joint EIR. The court disagreed. It is proper for an agency to conduct separate environmental reviews for activities which, although similar, are separate projects which can proceed independently. The court concluded that the Districts' transfer projectswere similar in nature, but that each transfer could proceed independently of the other. Because each transfer was a separate project which was not contingent upon_ the other, the separate environmental reviews did not violate CEQA's rule against segmenting. Sierra Club also argued that the water transfers would cause growth that was not accounted for in the city's General Plan EIR and that the use of transferred water was not restricted to areas covered by the EIR. The court flatly rejected Sierra Club's arguments, fmding that the growth inducing impacts did not exceed those analyzed in the General Plan EIR and that the "initial study clearly state[d] that the water was to be assigned only to those areas already subject to the city's general plan." The court went on to state that "Sierra Club's failure to raise any facts to suggest cumulative or growth -inducing impacts exposes a possible intent to use CEQA simply to create delay." Finally, the court considered and rejected Sierra Club's argument that the Districts did not adequately consider the impacts of water cutbacks during drought years. The Negative -21- SACRAMENTOU7BU 7360.1 78 LAW OFFICES OF BEST BEST 3 KRIEGER LIP Declarations analyzed the impacts that would occur from a 40% cut in water deliveries during drought years. Sierra Club argued that water cutbacks could exceed the 40% presumption: The ` court rejected Sierra Club's argument, finding that it would force the Districts to "engage in sheer speculation, an act CEQA does not require." 6. CEQA Litigation Procedures— No less than three of the published CEQA decisions this year concern the scope of the petitioners' obligation to request a hearing within 90 days of filing the CEQA suit and the remedies available when this obligation is not met. In the past few years, the trend in the cases has been to fmd that the petitioner can satisfy its obligation by merely filing a document asking the trial court to seta hearing date, but the failure to timely file this notice results in mandatory dismissal of the case for which no relief is available. Three of the rasps also contain important guidance for public agencies regarding the assembly and contents of the administrative record. One court finally asked the frequently asked question, " what happens if I fail to file the Notice of Determination within the statutory five day period?" Nacimiento Regional Water Management Advisory Committee v Monterey County Water ResourcesAgency,122 Cal. App. 4th 961(2004). In this case, the parties had agreed to transfer the case to San Francisco County. As part of the stipulation, the parties also agreed to extend the deadline for petitioner to request a hearing on the merits pursuant to Public Resources Code § 21167.4(a). However, the petitioner failed to request the hearing by the agreed -upon date. Four months later, the agency moved to . dismiss the action, and the court granted that request. Petitioner then moved for relief pursuant to Code of Civil Procedure § 473(b), which allows relief for a dismissal caused by an attorneys excusable mistake, such as an unclear area of law. However, counsel admitted the mistake was due to his failure to calendar the deadline to request a hearing, which is considered an inexcusable mistake. The court denied petitioner's motion for relief, concluding that relief was not available in this case. Reinstating the case would nullify the purposes of requiring a CEQA petitioner to request a hearing within 90 days of filing the petition, thereby upsetting the Legislature's carefully crafted plan for prompt resolution of CEQA litigation. Accordingly, the court refused to grant relief from the attorneys inexcusable failure to file a request for hearing by the agreed -upon deadline. Association for Sensible Development at Northstar, Inc. v. Placer County (Northstar Mountain Properties, LLC),122 Cal. App. 4th 1289 (2004). Just five days after the First District filed the Nacimiento case, the Third District Court of Appeal filed another case construing Public Resources Code § 21167.4. In Association for Sensible Development at Northstar, Inc. v Placer County (Northstar Mountain Properties, LLC), the trial court determined that a petitioner can satisfy its obligation under Public Resources Code § 21167.4 to request a hearing by filing a Request for a Hearing. Previously, the seminal case on the requirements of section 21167.4 was McCormick v Board of Supervisors (1988)198 Cal.App.3d 352. The McCormick court had held "section 21167.4 requires the petitioner to take affirmativesteps sufficient to place the matter on the court's docket for a hearing, either by filing and serving a notice of hearing or utilizing some other method authorized by the local rules of the court in which the matter is pending.: A mere advisory pleading stating that the petitioner requests a hearing is inadequate." However, the -22-. sACRAMENIG\ITat1736o.I 79 LAW OFFICES OF BEST BEST S KRIEGER LLP Third District reasoned that McCormick was no longer good law because of the Legislature's amendment to section 21167.4 in 1994. The amendment added subdivision (c) to the statute, which allows "any party" to file an "application" for a hearing date; at which point the court must set the hearing. Thus, the court reasoned, the McCormick case's holding requiring the petitioner to do something more than file a request for a hearing does not reconcile with the new language added by the Legislature in subdivision (c) stating that "any party" may request the court to establish a briefmg schedule and a hearing date. Accordingly, the court concluded that the petitioner in this case satisfactorily complied with Public Resources Code § 21167.4 when it timely filed a request for a hearing. Leavitt v. County of Madera (Castle & Cooke California, Inc.),123 Cal. App. 4th 1502 (2004). Leavin also construed the requirement that the petitioner request a hearing within 90 days of filing its CEQA petition, finding that a notice simply asking the court to set a hearing date satisfies this requirement. Leavitt also held that the petitioners' delay in assembling the administrative record did not warrant dismissal of the CEQA case when the counsel for the County and the developers/project applicants were partially responsible for the confusion about the contents of the administrative record and the delay in its preparation. Petitioners challenged the County of Madera's approval of a project to develop 6,500 residential units and other public and commercial facilities on 2,392 acres of farmland just north of Fresno. An EIR was prepared to analyze the potential environmental impacts of the project; the County Board of Supervisors certified the fmal E1R and approved an Area Plan and an amendment to the General Plan in March 2002. Seven months later, the Board adopted findings, conditions of approval, mitigation measures and a mitigation monitoring program.1 Among other things, the Board's fmdings stated that the custodian of the documents and the record of proceedings were located at the office of the Resource Management Agency, Director. When they initially filed their CEQA suit in November 2002, petitioners elected to prepare the administrative record themselves, but, by January 2003, petitioners had changed their position and requested that the County staff prepare it. However, petitioners did not revoke the Notice of Election to Prepare the Administrative Record that they had previously filed with the court. ' It is not clear from the record why the findings supporting the EIR were not made and the mitigation measures and mitigation monitoring and reporting program were not adopted when the EIR was certified. Although the court did not rule on these issues, the delay between the project approval and the adoption of the findings, mitigation measures and mitigation monitoring and reporting program could be construed as violating CEQA's procedural requirements. See State CEQA Guidelines Sections 15091 [prohibiting public agencies from approving projects for which the EIR identifies one or more significant environmental effects unless fmdings are made]; 15093 [when statement of overriding considerations is required due to project's significant unavoidable impacts, that statement "should be included in the record of the project approval";15097(a) [mitigation monitoring and reporting program requirement applies when public agency makes fmdings that changes or alterations have been required in or incorporated into the project to mitigate its environmental impacts]. -23- SACRAMENrOUTB\17360.1 LAW OFFICES OF BEST BEST S KRIEGER LLP Counsel for the developers/project applicants took the position that petitioners had failed to prepare the record by the statutory deadline and, thus, the CEQA case was subject to dismissal. However, in a letter sent to petitioner's counsel in February, the developers' counsel indicated that the County would provide an estimate of costs for the record preparation, and the developers would not move to dismiss the CEQA case if petitioners deposited the full amount of the estimate within seven days of receipt of the estimate. In April, the County's consultant provided petitioners with an estimate of costs indicating that preparation of the administrative record would be $59,127.50. This figure included the costs for the County's consultant to assemble, index and copy 2,200 documents which were identified as being part of the administrative record as well as the costs associated with having a court reporter transcribe the hearings. Upon receiving this information, petitioners again reversed course and began preparing the administrative record themselves. To that end, petitioners asked the developers' counsel for a list of documents that he contended were part of the record but not contained in the County's files. The developer's counsel responded by directing petitioners to documents at nine . different locations throughout the state, including.a number of different County offices; offices of the County's environmental consultant in San Francisco, Sacramento, Oakland, and Los Angeles; and offices of three other sub -consultants. Developers' counsel declined to provide a list of documents that should be included in the administrative record, stating that was part of the task petitioners had elected to undertake, and reiterated that the developers would move to dismiss the suit based on the petitioners' delay in compiling the record. After the parties were unable to resolve their dispute, at the end of May, petitioners filed a motion for an order setting a schedule for the preparation of the administrative record, while developers' counsel filed a motion to dismiss the case based on petitioners' failure to prepare the record within 60 days of . filing the petition and on petitioners' purportedly inadequate request for a hearing. In June, petitioners lodged their proposed administrative record. The following week, after hearing the motion for scheduling order, the trial court ordered the County to certify the documents lodged by petitioners before the trial court would hear the motion to dismiss. In July, the County filed a "partial certification," but the document did not state "I certify or words to that effect and did not indicate the basis for the witness' knowledge allowing him to certify the factual assertions. The partial certification described a large number of doeuments that the County contended should have been included in the administrative record. After receiving this evidence, the trial court held a hearing on the motion to dismiss and granted it, finding (1) petitioners' request that the trial court set a hearing date did not satisfy their obligation to request a hearing within 90 days of filing their CEQA petition, and (2) petitioners' failure to prepare the administrative record within 60 days of filing their petition justified dismissal of the case. Petitioners appealed. Regarding their obligation to set a hearing date, petitioners noted that their Notice of Motion for Peremptory Writ of Mandate included a "notice for a hearing" indicating it was meant to satisfy petitioners' obligation under Public Resources Code § 21167.4. The developer's argued that this notice was defective because it failed to schedule an actual hearing date, and, thus, the case was subject to mandatory dismissal. The appellate court rejected the developers' SACRAMfNrOUTBu7360.1 -24- 81 Low OFFICES OF BEST BEST S KRIEGER LLP argument. The plain language of Public Resources Code § 21167.4 is satisfied as long as the CEQA petitioner files and serves a document requesting a hearing the hearing date is to be established by the court. Although McCor►nick v Board of Supervisors,198 Cai.App.3d 352, 357-358 (1988), held that CEQA petitions were subject to dismissal if the petitioners did not "take affirmative steps to set a hearing date" on the court's calendar, the holding of that case was superseded by the Legislature's 1994 amendment to Public Resources Code § 21167A. Accordingly, the court found that petitioners had complied with the requirement to set a hearing, and the case was not subject to dismissal on this ground. On the second issue, the court concluded that dismissal was not an appropriate sanction to impose on petitioners for the delay in assembling the administrative record. The court reasoned that CEQA does not authorize the dismissal of a petition, or any other sanction for that matter, against a petitioner who elects to prepare the administrative record and then fails to file it within 60 days. The court was obviously troubled with the apparent discrepancy between the County's findings, which indicated the documents comprising the administrative record could be found in one location at the County, and the position taken by counsel for the County and the developers that a complete administrative record would require petitioners to gather thousands of documents from multiple locations throughout the state. The court noted that, under Public Resources Code § 21167.6(ex 10), the administrative record shall include "written materials relevant to the respondent public agency's compliance with [CEQA] or to its decision on the merits of the project, including . copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency's files on the project." The court also noted that the Notice of Availability of the Draft EIR must disclose "the address where copies of the E1R and all documents referenced in the EIR-will be available for public review. (State CEQA Guidelines Section 15087(c)(5).) However, the County's Notice of Availability did not state what documents could be reviewed; or at which locations. Moreover, although the County's findings identified only one location and custodian of records, "it appears that the litigation posture of [the developers] regarding the scope of the [administrative record] is not consistent with the disclosure contained in the Board's resolution regarding the [administrative record]. The court found that these two facts contributed to petitioners' confusion about the scope of the administrative record, and, as a, result, dismissal of petitioners' case was not an appropriate sanction for the delay in the preparation of the record. The Leavitt case indicates that public agencies are well advised to have their files in order well before any litigation is filed. To ensure that there is no question that relevant documents were made available for public review, it would be prudent to collect and organize all the documents constituting the administrative record to date, and deposit them in at least one accessible location, before releasing the draft EIR or Negative Declaration for public review. The notice informing the public of the document's release can then also specify where the relevant agency files may 'be reviewed. Likewise, the findings made in connection with the project should designate where the collected documents are located. There is also a potential cost advantage in this approach. Many times when a CEQA challenge is filed against a project and the petitioner elects to prepare the record itself, the SACRAMENTOUTSN17360.1 -25- 82 LAW OFFICES OF BEST BEST S KRIEGER LLP public agency spends significant staff or consultant time organizing its files before they can be released to the petitioner for compiling the record. There is no mechanism for recovering this expense. However, if public agencies organized their files before project approval, private . project applicants would normally bear the costs of organizing the files for their projects, since most public agencies require reimbursement for staff or consultant time spent processing private development applications. Thus, by preparing itself before the project is approved, the public agency can avoid getting stuck with unnecessary expenses. Leavitt also offers guidance regarding the certification of administrative records. Generally, CEQA findings include a section that designates the custodian of records; and this person certifies the administrative record if any litigation is filed. Leavitt suggests that the person designated as the custodian of records should be someone who is able to certify, based on personal knowledge, what documents are properly included in the administrative record. Leavitt also indicates that the certification form should contain language indicating that the signer "certifies" or "declares" the contents of the record to be correct. Finally, in a footnote, Leavitt suggests that Public Resources Code § 21167.6(b)(1) does not authorize public agencies to require the deposit of funds as a condition to preparing the administrative record. Presumably, the same logic would prevent public agencies from refusing the release a copy of the administrative record until the petitioner pays for it. El Morro Community Assn v. Cahfornia Department of Parks and Recreation, 122 Cal. App. 4th 1341(2004). This case concerned Crystal Cove State Park, approximately 2,800 acres of mostly undeveloped natural land, including about three miles of coastline, located near Laguna Beach. The park includes two developed areas: the Crystal Cove Historical District and the 287-unit El Morro Mobile Home Park. When the California Department of Parks and Recreation acquired the park through a combination of purchases and gifts in 1979, it also acquired these developments, subject to their existing leases. At that time, the tenants of the mobile home park waived their rights to relocation benefits in exchange for 20-year leases, which were later extended to December 2004. Thus, the Department agreed .to forego its right to obtain the property immediately in exchange for the property owners agreeing to give up some of the compensation they might otherwise have had a right to receive. In 1982, the Department adopted a General Plan for the park that included plans to convert the two residential developments to public facilities. The General Plan specifically stated that the mobile home park would be eliminated and replaced with parking areas, bathrooms, picnic facilities, and a campground for recreation vehicles. Nearly 20 years later, when the mobile home park leases were getting close to expiring, the Department prepared an E1R to analyze the environmental impacts of the proposed demolition of the mobile home park after the expiration of the residents' current leases and the conversion of the area to public facilities including a campground, parking, and picnic areas. Petitioners, representing residents of the mobile home park, challenged the Department's certification of the EIR. SACRAMIT TOUTS\17360.1 -26- 83 LAW OFFICES OF BEST BESTS KRIEGER t1.P Among other things, petitioners contended that the trial court should have granted its motion to augment the administrative record with three documents. The court disagreed. The court found that the documents were inappropriate to be included in the administrative record because extra -record evidence is usually not admissible in traditional mandamus actions challenging quasi -legislative administrative decisions related to CEQA. The court also noted that even if the documents had been included in the administrative record, the excluded documents were either irrelevant or involved minor post -approval changes to the project that would not have required any major revision to the EIR. Petitioners also argued that the Department could not have adequately considered, in good faith, the results from the traffic study because the EIR was certified the day after the consultants completed the 295-page study. The court disagreed, however, reasoning that the vast majority of the traffic study consisted of data sheets. The substance of the report took up only 18 pages, while the heart of the report was the one -page conclusion. Because the EIR was changed to reflect the information contained in the traffic study, the court presumed that the Department adequately considered the traffic study. Petitioners also complained that the Department's hydrogeologic study submitted to the San Diego Regional Water Quality Control, Board in September 2002, one month after the EIR's certification, demonstrated that the Department failed to include relevant information in the EIR. The court determined that including the actual report in the EIR was unnecessary because the hydrogeologic report was prepared specifically to comply with the requirements of the Regional Board to complete a waste discharge report, not as supporting documentation for the EIR. The court concluded that the completion of the hydrogeologic report had "no bearing" on the Department's decision to approve the project. Royalty Carpet Mills, Inc. v. City of Irvine (Essex Property Trust, Inc.), 125 Cal. App. 4th 1110 (2005). In this case, the Fourth District Court of Appeals rejected Royalty Carpet's challenge to Irvine's adoption of a Mitigated Negative Declaration and approval of a conditional use permit for an apartment complex. Royalty Carpet Mills, Inc. makes carpet in an industrial section of the City of Irvine. F .sex Property Trust, Inc, applied for a conditional use permit to build a 132-unit apartment complex near Royalty Carpet, and the city council approved the Project and adopted the MND. Six working days later, on May 21, 2003, Irvine filed a Notice of Determination for the Project. Royalty Carpet filed a petition for writ of mandate. Because Irvine failed to file its Notice of Determination within five days of approving the project, Royalty Carpet argued that the longer 180-day limitations period, rather than the shorter 30-day statute, applied. In a footnote, the court disagreed The court recounted that this subdivision of the statute allowed for a longer limitations period if the public agency failed to file a Notice of Determination. In this case, Irvine did file a Notice of Determination, even if one day late. The court reasoned that the 30-day limitations period begins to run from the date the public agency files the Notice of Determination. Since Irvine filed the Notice of Determination one day late, the court added one day to the time Royalty Carpet had to file the petition. SACRAMENTOUTEM7360.1 -27- 84 LAW OFFICES OF BEST BEST E. KRIEGER LIP 7. Miscellaneous EIR Cases Sierra Club v. County of Napa (Beringer Wine Estates),121 Cal. App. 4th 1490 (2004). This case focused on the type of evidence a public agency may consider in determining whether a project alternative is "feasible." Beringer proposed to build an integrated winery facility, including a 115-acre vineyard, on 208 acres located in the Napa County Airport Industrial Area Spec Plan area. The County prepared a Draft EIR which noted that the construction of the winery would result in the loss of approximately one-half acre of wetlands suitable for vernal pool fairy shrimp habitat. Although Beringer agreed to perform a number of measures to mitigate for the loss of wetlands, the EIR found that the impact stillwouldnot be reduced to level of "less than significant." The EIR identified six alternatives to the proposed project, but three of these were screened out because they were not capable of meeting Beringer's project objectives. The EIR then analyzed the resulting three alternatives: (1) a "No Project" alternative, (2) a "Wetlands Preservation" alternative, and (3) a "Reduced Development" alternative. The County rejected both the Reduced Development and the Wetlands Preservation alternatives as being infeasible. The Sierra Club challenged this decision, arguing, among otherthings, that the County had improperly relied on a letter from Beringer's Vice President explaining why it would not be feasible for Beringer to configure its facility in such a way as to preserve all wetlands on the site. The letter explained that Beringer sought to consolidate its warehousing, bottling and distribution operations, so that it could eliminate costly and inefficient multiple trucking movements of bottled and unbottled wine between the five facilities currently supporting those operations. The configuration of the buildings was dictated in part by operational concerns. As summarized by Beringer's Vice President, "Given the site constraints imposed by No Name Creek, the wetlands to be preserved, the utilities easement bisecting the property, the railway location, and the required access from Devlin Road, the approved project is the only place on the property to construct a facility of the size and layout that we must have to meet our fundamental business needs of operational efficiency and consolidation, which is the justification for this large and expensive project." Sierra Club complained that the Board should not have relied on this letter because it was not contained in the EIR and the approval of such a last-minute' submission would violate the spirit of CEQA by allowing a developer to withhold evidence so that the public has no opportunity to contest it The court rejected both of these arguments. First, the court held that nothing in CEQA requires an EIR to analyze issues of economic feasibility or requires an agency to receive public input on the question of economic feasibility. Therefore, the timing of the submission of the letter did not deprive the public of any right conferred on it by CEQA. Second, the court rejected Sierra Club's contention that developers should not be permitted to put evidence into the record at the last-minute. The court found this argument disingenuous, considering that Sierra Club had submitted its own letter to the Board at the same time in the process. SACRAMEMrOUTB117360.1 -28- 85 tAW OFFICES OF BEST BEST & KRIEGER LLP Federation of Hillside and Canyon Assns. v. City of Los Angeles,126 Cal. App. 4th 1180 (2004)• This case approved a General Plan Framework and new CEQA fmdings and statement of overriding considerations adopted by the City of Los Angeles. The city's General Plan Framework ("GPF") is an element of Los Angeles' General Plan that sets forth policies, objectives and goals for the growth of the city. Of particular concern to the petitioners was the GPF program called Transportation Improvement Mitigation Plan ("TIMP"). TIMP identified mitigation measures to offset transportation impacts of the GPF's land use and growth policies. Importantly, TIMP stated that its "preliminary" analysis of Los Angeles' share of the cost to implement its share of the program would exceed its anticipated revenues. The city's fmal EIR stated project -specific effects on transportation were significant but could' be substantially reduced through mitigation, but the cumulative adverse impacts on the region would continue to be significant and unavoidable. Petitioners successfully challenged the sufficiency of the EIR. The litigation eventually culminated in a prior published decision, Federation of Hillside and Canyon Associations v City of Los Angeles, 83 Cal. App. 4th 1252 (2000), which overturned Los Angeles' CEQA finding that the transportation impacts of the GPF would be mitigated. In the prior decision, the court reasoned that funding for the TIMP was uncertain and the city had made no provision to ensure that the TRAP would be implemented: The court concluded, "The city may comply with CEQA by amending the GPF so that effective mitigation measures are required as a condition of the development allowed under the GPF, or by restricting the scope of development and then making a finding under section 21081, subdivision (aX1), or by making a finding of overriding considerations as to the significant effects on transportation." To comply with the decision, Los Angeles vacated the approval of the GPF, adopted new CEQA findings and a statement of overriding considerations, andreadopted the GPF without change. In most areas, the new fmdings were substantially the same as the prior fmdings. However, in the area of transportation, the fmdings stated there would be significant' impacts on transportation, but that Los Angeles now believed it would be able to fund its share of the costs of those measures. In the findings, Los Angeles took into account the fact that it could not guarantee state and federal funding for TIMF. Los Angeles concluded that TRAP may be infeasible because the city could not guarantee funding from state and federal sources. Further, if TIMP was not implemented, the transportation mitigation measures also would be infeasible. After revising the findings, Los Angeles proceeded to adopt a statement of overriding considerations fmding that any potentially significant impacts caused by the infeasibility of TIMP were outweighed by the project's benefits. Petitioners filed a second petition for writ of mandate challenging Los Angeles's re -adoption of the GPF and its revised CEQA fmdings and statement of overriding considerations. Petitioners challenged the city's findings regarding the potential infeasibility of the TRAP. Petitioners claimed this fmding constituted a significant adverse environmental impact that required revision and recirculation of the ER. The court rejected this characterization of the fmdings. If anything, Los Angeles' findings reflected a "greater SACRAM NTOTr6117360.1 -29- 86 LAW onlocs of BEST BEST & KRIEGER LL.P likelihood": that the TIMP mitigation measures would be fully implemented because, in contrast,. to the situation in the previous litigation, the findings committed Los Angeles to funding the TINT. Furthermore, the EIR had already analyzed transportation impacts of the GPF without the proposed mitigation measures, and petitioners never challenged this analysis and.were now time - barred from doing so. The court determined that just because Los Angeles had issued findings that TIMP may be infeasible did not result in either new significant environmental effects or a substantial increase in the severity of significant effects identified in the EIR and, as such, did not call for a subsequent EIR or supplemental EIR. Petitioners also attempted to reopen Los Angeles' findings concerning impacts on air quality, water resources, waste water, solid waste, open space, and utilities. The court rejected these challenges based upon the doctrine of res judicata, which prevents a petitioner from re -litigating a cause of action that was previously litigated in another proceeding between the same parties. Here, the court found that it had previously rejected earlier attempts by petitioners to challenge the E1R and held that Los Angeles did not need to revise the EIR unless it decided to change the project. & Miscellaneous Negative Declaration Cases County Sanitation Dist. No. 2 of Los Angeles Co. v. County of Kern, 2005 Cal. App. LEXIS 516 (2005). County Sanitation overturned the use of a Negative Declaration to adopt a county ordinance which restricted the application of sewage sludge to agricultural fields. Because the ordinance created the potential for environmental impacts caused by alternative methods of sewage sludge disposal, an E1R was required. The treatment of human sanitary wastes results in sewage sludge. The further treatment of this sludge to remove water, results in dried biosolids. Sewage sludge and biosolids are classified according to their level of treatment, such that "exceptional quality" biosolids contain less pollutants and other materials than Class B biosolids. In California, sewage sludge and biosolids can be stored, buried, incinerated, or applied to land as a fertilizer. Citing concerns for public health; air quality, and water quality, the County enacted an ordinance that forbade the land application of Class B biosolids after January 1, 2003. Land application of "exceptional quality" biosolids remained permissible. County Sanitation District No. 2 of Los Angeles County and the California Association of Sanitation Agencies each challenged the adoption of the ordinance, which will prohibit them from exporting Class B sludge to Kem County for land application. Among other things, petitioners alleged that the County violated CEQA by failing to prepare an EIR for the ordinance. The County argued that only portions of land in Kern County subject to the Ordinance should be considered for CEQA purposes. Because the overall effect of the Ordinance would produce environmental benefits to those acres, the County argued that an OR was not required. The court agreed that the Ordinance could have a beneficial effect on Kern County's environment, however the court found that evidence of environmental benefits does not -30- SACRAMENTOUTIA17360.1 87 LAW OFFICES of BEST BEST & KRIEGER LrP eliminate the requirement for CEQA review where there is also evidence of potentially negative environmental impacts. Further, the court held that the relevant area for CEQA purposes was not restricted to the Kern County, but instead included any place "where physical conditions will be affected by the proposed project" The court found that the County could reasonably foresee that the ordinance would have indirect environmental impacts because sewage sludge generators would have to fmd alternative disposal methods for sludge, such as (i) trucking the sludge further distances for disposal, (ii) disposing of the sludge in a landfill, or (iii) treating the sludge to "exceptional quality" such that it could be spread on Kern County lands. Each of these possible reactions implicated the potential for environmental impacts, such as additional air pollution, loss of landfill capacity, and increased consumption of energy and other resources. The court also found that the County could reasonably foresee that Kern County farmers would react to the ordinance by using alternative fertilizers such as animal manure and chemical fertilizers. Using substitute fertilizers had potential environmental impacts such as increased air pollution, water pollution, and impacts to soil quality. Because the Ordinance had the potential to cause indirect environmental impacts, an EIR was required. However, the court allowed the ordinance to remain in effect provided the County completed the ElR in good faith. 9. Miscellaneous Exemption and Other Cases Salmon Protection and Action Network v. County of Marin,125 Cal. App. 4th 1098 (2005), as modified, review denied. In this case, the First Appellate District set aside the County of Marie's approval of an exemption and permits to construct a single-family residence. The County had determined that, with mitigation measures, the single-family house was categorically exempt from CEQA.2 However, the lot in this case was in a sensitive riparian area that the County had pre -designated as an area of critical concern. Accordingly, the court held that the County erred in two ways. First, this single-family house fell within an exception to CEQA's categorical exemption because the project could possibly impact an environmental resource of critical concern_ Second, the court held that mitigation measures may be used only with Mitigated Negative Declarations or environmental impact reports, not categorical exemptions. Only those projects that have no significant effect ou the environment may qualify -for a categorical exemption from CEQA review_ Association for a Cleaner Environment v. Yosemite Community College District,116 Cal. App. 4th 629 (2004). The Fifth District held the Yosemite Community College District's plans to close and remove a campus shooting range were subject to CEQA, did not qualify for any CEQA exemptions and the matter was not moot. At the heart of the decision was the court's analysis 2 Normally, the application for building permits for a single-family residence is a ministerial approval, which is not subject to CEQA review. However, here the County had passed an ordinance requiring people who wanted to build next to the creek to obtain a discretionary permit so that the County could ensure environmental protection of the riparian habitat. SACRAMENTOUTM17360.1 -31- 88' LAW OFFICES OF BEST BEST b KRIEGER LLP regarding what constitutes a "project" for purposes of CEQA in light of an agency's "whole of an action." The Yosemite Community College District must now perform an initial study to determine what additional environmental review will be required under CEQA. Modesto Junior College, which is a part of the Yosemite Community College District, built a campus shooting range in 1975. The District used the range for firearms courses and also allowed local public and private law enforcement officers to practice at the range. In 2001, sparked by tremendous growth in student population on the College campus, the District Board of Directors identified safety, environmental and noise -related concerns with the shooting range. Because of the existence of newer and better facilities located off -campus, the Board identified four alteratives for the future of the shooting range: (1) selI it; (2) donate it; (3) demolish it; or (4) leave it empty. The administrative record contained evidence showing that the District's plans to. remove the range dated back to 1994. For instance, the District hired an environmental firm to investigate lead contamination from the shooting range and hired an architect to look at safety issues surrounding bullet fragments escaping from the shooting range. Furthermore, the. District received a warning letter from an insurance company questioning the wisdom of continuing to operate a shooting range in the middle of a college campus. In October 2001, the Board passed a resolution to close the shooting range, to clean up lead contamination at the site, and to donate the salvageable portions of the range to the Tuolumne County Sheriff's Office. The Association for a Cleaner Environment ("ACE") filed a petition for writ of mandate, contending the District's reliance on exemptions was improper and the District should have conducted an initial study to determine the appropriate level of environmental review. The District argued the action was not a project for the purposes of CEQA. The appellate court identified a two-step process that local agencies must go through to determine whether an activity constitutes a "project" subject to CEQA. First, the activity must include a discretionary action undertaken by a public agency. (Pub. Resources Code, § 21065, subd. (a).) Second, the "whole of an action" must have a potential for resulting in either a direct physical change in the. environment, or a reasonably foreseeable indirect physical change in the environment. (CEQA Guidelines, Section 15378, subd. (a).) If an agency reaches this determination, then it must conduct an initial study. ACE contended the District's actions included closure, cleanup and destruction of the firing range, as well as transfer of activities to another site. The District argued the Board had determined only to close the facility.and remediate the site, making no decision regarding removal of the facility. The court disagreed with the District. The court, citing to evidence in administrative record, concluded the District had had a long-term goal to demolish the shooting range, although the Board had not yet voted upon the fmal decision. Therefore, the court found, the "whole of the action" included destroying the range. The court went on to determine the activities would have the potential for a direct or reasonably foreseeable indirect effect on the environment, finding the lead report indicated a risk that the project could spread lead contamination at the removal site as well as the salvage site. Because the District's proposed project included the destruction of the range, and destruction of the range was not subject to an exemption, the District had to perform an initial study to determine the appropriate level of environmental review. sACRAMENTCATIMI7760.1 -32- 89 uw OFFICES of BEST BEST a. KRIEGER LIP Santa Barbara County Flower and Nursery Growers Association, Inc. v. County of Santa Barbara,121 Cal. App. 4th 864(2004). In this case, the Sixth District Court of Appeals held that the local coastal plan (LCP) amendment prepared by the County of Santa Barbara was exempt from the EIR provisions of CEQA, and the County did not waive its CEQA exemption simply because it chose to prepare an EIR. Since 1982, the California Coastal Commission had been working with the County to conduct an environmental assessment concerning the development of greenhouses in the Carpinteria Valley. Finally in 1998, the Commission threatened to stop approving any future greenhouse development until the County completed a LCP amendment and the required environmental assessment. In February 1999, the County released a paper which provided various options for greenhouse development in the Carpinteria Valley. In addition, the County prepared an EIR to satisfy the its environmental assessment obligation. The County issued the proposed final EIR in March 2000 and certified the final EIR and adopted the LCP amendment in February 2002. The County then submitted the EIR and LCP amendment to the Commission for its approval. The next month, the Santa Barbara County Flower and Nursery Growers. Association, Inc. filed a petition challenging the adequacy of the EIR. The trial court denied the petition, fmdi ag that the activities and approvals by the County were statutorily exempt from CEQA because they were necessary for the preparation and adoption of a LCP amendment. The Association contended that reliance upon the exemption was discretionary, and, by electing to prepare an EIR, the County waived the exemption and obliged itself to comply with all of CEQA's EIR requirements. The court disagreed. The court observed that the California Coastal Act of 1976 is a comprehensive statutory scheme designed to protect the environment of California's coastal zone by requiring preparation of LCPs and LCP amendments that embody statewide. standards. The court noted that the Coastal Act requires the implementation of LCPs and LCP amendments that embody statewide standards for preserving the coastal zone. A local agency must conduct environmental review of proposed LCPs or LCP amendments, before the LCP amendments become effective. The Commission must certify that the LCP amendment conforms to the environmental protection policies of the Coastal Act. CEQA exempts the approval of a LCP amendment by the Commission from the EIR provisions in CEQA because the environmental regulations set forth in the Coastal Act operate in place of the EIR process. Accordingly, neither the Commission nor the County was required to prepare an EIR prior to the approval of the County's LCP amendment. The fact that the County chose to prepare an ElR to submit to the Commission as its environmental assessment did not waive the exemption. Nothing in CEQA or the Coastal Act gives local public agencies the power to opt out of the Commission's regulatory program and choose to be governed by CEQA instead. Thus, the County could not and did not waive the CEQA exemption by preparing an EIR. SACRAMENIVJTM17360.1 -33- 90 LAW OFFICES OF BEST BEST S KRIEGER LLP Native American Sacred Site and Environmental Protection Association (NASSEPA) v. City of San Juan Capistrano (Pueblo Serra, LLC),120 Cal. App. 4th 961(2004). At issue in NASSEPA was whether the City of San Juan Capistrano was required to comply with CEQA before enacting a voter -sponsored initiative. The Fourth District Court of Appeals found that this activity was exempt from CEQA review. To build a school for 3000 students on two parcels within San Juan Capistrano, the project sponsor solicited signatures for a petition to qualify a voter initiative to change the designation of the sites to "Public and Institutional" and the zoning to "Public Institutional." After the petition was certified, the city agreed to adopt the initiative pursuant to Elections Code section 9214, which provides that, once 15 percent of a. city's registered voters have signed an initiative petition, the city can either submit the initiative to a vote or simply adopt the initiative asis, without changes. In this instance, San Juan Capistrano negotiated an agreement containing certain mitigation conditions and then adopted the initiative. NASSEPA challenged the city's adoption of the initiative because they claimed that the city could not adopt the initiative without completing a CEQA review. The court held that a city's duty to adopt a qualified voter -sponsored initiative; or place it on the ballot, is both ministerial and mandatory. Because the city has no discretion to shape the law, and is acting only as an agent for the electorate in such situations, the enactment of the initiative measure is excluded from CEQA review. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024 (9th Cir 2004). , In another clash between land use regulations and a religiously affiliated landowner, the Ninth Circuit affirmed a lower court decision finding a city did not violate the First Amendment or the Religious Land Use and Institutionalized Persons Act of 2000. ("RLUIPA") in denying a Christian college's rezoning application. This case presented the interesting issue of whether a city's application of CEQA regulations to a religious college violated RLUIPA. In this case, the San Jose Christian College owned property sited with a hospital. The property was zoned for "Planned Use Development," which allowed all uses provided the uses were consistent with the City of Morgan Hill's development plan. The city's development plan designated the site for hospital use, and the property was the only location in the area actually designated for hospital use. The college sought to use the inoperative hospital facilities for educational purposes related to expanding the college's existing campus. To that end, the college submitted an application to the city for approval of a zoning amendment to change the allowable uses designated on the city's development plan. The city reviewed the application and requested additional information about the site plans, building elevation, landscaping and specific operational details. Rather than submitting the requested information, the college responded by submitting a scaled -back application and proposal. The initial application proposed additional facilities, sporting fields and up to 1200 students added over 20 years. The scaled back proposal described only existing facilities and an enrollment of 400 students. Representing to the city that it did not have a clear sACRAMINr0VCBA17360.1 -34- 91 LAW OFFICES OF BEST BEST S KRIEGER t1P picture of any future plans, the college contradicted itself by publishing detailed plans for expansion in the college alumni magazine. Parallel to these events, a city task force evaluated the community needs for medical services and recommended the property remain zoned for hospital use. Although the city staff disagreed with the task force, the Planning Commission issued a recommendation to deny the college's rezoning application, which the City Council followed. The college filed a complaint and requested injunctive relieve on the basis that the city's zoning process violated the First Amendment and RLUIPA. The district court denied the college's request for a preliminary injunction and subsequently granted the city's motion for summary judgment; the college filed a timely appeal. Among other things, the college claimed the application of CEQA regulations to its rezoning application violated RLUIPA because the regulations substantially burdened its religious exercise. The court noted RLUIPA only applies to land use regulations. For the sole purpose of determining the RLUIPA claims, the court assumed CEQA was a land use regulation. Opining that CEQA did not increase the inconvenience otherwise imposed by the city's lawful zoning application requirements, the "court specifically stated it was not a burden to the college's free exercise of religion for it to reveal the full extent of its proposed' development to allow the city to assess the environmental effects associated with the proposed development: Thus, the court held complying with CEQA regulations did not violate RLUIPA. The college also claimed it had complied with the city's CEQA regulations. Again, the court did not agree. While on the one hand the college told the city it could not predict its future facility requirements, it continued to publish expansive development plans in the college magazine. Thus, the court found the city reasonably concluded the college did not provide the necessary detail of foreseeable future development and its impact to avoid addressing the environmental impact of the more ambitious plans. 92