Did the Fort Ord Reuse Authority, and the Monterey County Board of Supervisors, break the law with respect to the proposed Eastside Parkway in the former Fort Ord?
Monterey County Superior Court Judge Lydia Villarreal thinks so.
In an "intended decision" she issued Jan. 11, Villarreal agreed with Molly Erickson, an attorney representing activist group Keep Fort Ord Wild that, together, FORA and the county lent "political and financial assistance" to a specific route for a proposed roadway in violation of the California Environmental Quality Act (CEQA).
Erickson argued that was the case over a series of hearings last November, five years after the lawsuit was filed.
In the hearings, she outlined how the FORA board had recently approved, in a 9-3 vote on Nov. 4, a $568,000 contract amendment for Whitson Engineers to prepare an environmental impact report for Eastside Parkway, which came after the FORA board had already approved $750,000 to Whitson in prior years for planning and design.
Ironically, the last of those hearings was on Nov. 10, the same day Monterey Downs was approved by the Seaside City Council in a 3-2 vote; Monterey Downs, Erickson argued, was the sole reason for the proposed route contemplated in the planned EIR, which would call for the razing of some 11,000 oak trees, yet would have served the Downs project.
How the county comes into play is that its board, in 2011, approved a memorandum of agreement for rights-of-way access on unincorporated county land on parcels that match the proposed alignment.
In court, Erickson argued that because this agreement was in place for only those parcels, and not potential alternatives, coupled with the fact that more than $1 million had been spent on the plan to date, there was enough bureaucratic momentum that any alternative routes that might be more environmentally sensitive weren't going to get fair consideration.
Furthermore, she laid out how Monterey Downs developer Brian Boudreau and his team appeared to influence the proposed route.
In the conclusion of Villarreal's intended decision, and quoting case-law, she writes, "When an agency has not only expressed its inclination to favor a project, but has increased the political stakes by publicly defending it over objections, putting its official weight behind it, devoting substantial public resources to it, and announcing a detailed agreement to go forward with the project, the agency will not be easily deterred from taking whatever steps remain toward the project's final approval."
Then, in her own words: "The combination of the unequivocal, binding terms of the MOA and the surrounding circumstances demonstrate respondents committed to the Eastside Parkway project prior to CEQA review."
What the ruling means is that going forward, every potential route for the roadway will be given equal consideration during environmental review—there is no longer a preferred route.
It also means the rights-of-way MOA between the county and FORA is vacated.
Erickson will also get attorney's fees paid to her by the county and FORA, but she won't say how much.
Nothing's final yet, because FORA attorney Jon Giffen and the county still have time to respond to the intended ruling, and sign off on it.
In response to the ruling, Erickson says she hopes FORA’s current board of directors will read the decision and put it on a future agenda for an open discussion of the Eastside Parkway.
Michael Salerno, a KFOW co-founder and vocal opponent of Eastside Parkway as it's currently proposed, hopes the board decides that—with Monterey Downs now dead—there is no need for the road on the "preferred" route.
"If they want to do a road, they have to go back to square one," Salerno says, adding that with attorney's fees, FORA has just wasted, in his estimation, up to $2 million on a road that may never get built, and may never be needed.
"We still feel there’s no need for a road to go through the backcountry," he says.
As for how the proposed alignment, in his mind, got rammed through the FORA board to facilitate Monterey Downs, he says, "It’s funny but it’s not funny. The process has become so perverse."
He is also hopeful that the current board—which has a handful of new members due to recent elections—will be rational with respect to the proposed roadway.
"Considering they’ve lost the decision on right-of-way, maybe the new board members coming in won't have inertia for Eastside Parkway," he says.
"FORA supposedly has only three-and-a-half years left. How much of a priority is that road now?"