Mountain View Voice

News - January 18, 2013

Surprise lawsuit over flood project

by Daniel DeBolt

A lawsuit has been filed against the Santa Clara Valley Water District over its Permanente Creek Flood protection project, even after district officials apparently tried to avoid such an ordeal.

The suit alleging that the project's environmental report isn't legally adequate was filed on Christmas Eve by San Francisco-based attorney Thomas Lippe, representing the "Cuesta Annex and Salco Acres Preservation Group."

Salco Acres is the 1950s single-family home neighborhood adjacent to the Cuesta Annex, a former orchard-turned city park where a controversial flood basin had been proposed. Citing opposition from residents, the water district removed the Annex flood basin from the project on Nov. 20.

"I'm actually surprised about the lawsuit being filed," said City Council member and lawyer Mike Kasperzak. "It's my impression that the Water District decided not to proceed with the Cuesta Park Annex basin because they were concerned about litigation arising under CEQA from this same lawyer. They clearly thought if they didn't go that route they weren't going to get sued."

Lippe did not respond to phone calls by the Voice's press deadline Wednesday.

The lawsuit claims that the Environmental Impact Report for the entire flood protection project is not adequate under the California Environmental Equality Act. The flood project aims to protect over 2,720 properties in the area from Permanente Creek in a 100-year flood, an event that has a 1 percent chance of happening every year.

According to the petition filed with the court, the purpose of the suit is to ensure that "the District does not adopt the Project in absence of an environmental document that adequately defines the project and analyzes, mitigates, and disclose the Project's significant adverse impacts."

The petition does not give specifics as to how the EIR is inadequate.

Kasperzak said the suit is an example of "issues a lot of people have with CEQA, how easy it is for a few people to stop something by filing a lawsuit, giving anyone the right to stop something despite what the majority desires."

"If people in Mountain View were counting on being protected by Permanente Creek work, they are going to feel sandbagged by at least this law firm and maybe some people in Mountain View," Kasperzak said. "Taxpayers will end up paying for this lawsuit."

A vocal group of residents remain opposed to the possibility that the Annex could be used for a flood basin even though the water district approved a final EIR on Nov. 20 which removed the Cuesta Annex basin from the project. Board members expressed interest in a suggestion by El Camino Hospital official that the hospital would pay for half of a flood basin at the Annex to protect the hospital, which could still be flooded along with 300 other nearby properties.

"Cuesta Park Annex belongs to all the people of Mountain View — it should not be available to the hospital as an afterthought," said Christine Crosby, one of several people who spoke against the hospital-funded basin at the Dec. 11 City Council meeting. "I think it's time any development plans were put to rest and it (the Annex) were saved for future generations."

Another resident near the Annex, Howard Bull, said he believed the designation of the area as a flood zone was "really in error."

"A few years ago when I challenged it and submitted my data to FEMA (Federal Emergency Management Agency), I was given an exemption from the flood control plain next to Permanente Creek, indicating the data for this entire project needs to be reevaluated."

A McKelvey Park neighbor who threatened to sue the water district last month over plans for a McKelvey park flood basin said he knew nothing about the suit. The water district's plan to rebuild the baseball fields at McKelvey was not approved when it went before the City Council on Dec. 11, with members asking for difficult changes to the plan to address neighbors' concerns.

"The entire Permanente project is at risk," said Brian Schmidt, Mountain View's water district representative, to the Mountain View City Council on Tuesday after addressing challenges with the McKelvey basin. "We might lose this project that protects 2,000 parcels in Mountain View, several hundred of which are paying significant flood insurance — I would guess a million dollars a year."

Email Daniel DeBolt at ddebolt@mv-voice.com

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