Attorney Zan Henson states “An Appeal is Mandatory” as Judge Elfving Denies PAMF EIR Decertification

Ironically, in an issue disputing “adequacy,” Judge William Elfving posted his ruling on October 6, but it took an additional week, afterward, to receive his written decision. As well, the Sept 24th hearing was almost 3 weeks ago, and as of yesterday afternoon, the file had not been delivered from Judge William Elfving’s Court Clerk to the Court Recorder’s office.     

Judge William Elfving denied the request to decertify the Palo Alto Medical Foundation PAMF Environmental Impact Report EIR. At the outset, the PAMF EIR Lawsuit had been assigned to the California Environmental Quality Act CEQA Judge Kevin Murphy. Each County must have one CEQA Judge who presides.

The Council for PAMF disqualified our designated CEQA Judge Kevin Murphy stating that he might be biased, as he had recently ruled against the City of Sunnyvale in the Mary Ave Extension EIR Lawsuit.

The Palo Alto Medical Foundation PAMF EIR traffic impact complaint is similar to the Mary Ave Extension EIR dispute whereby Sunnyvale used projected traffic counts as opposed to the current baseline for analysis and disclosure.

The request for disqualification was granted and the PAMF EIR Lawsuit was then transferred to Judge William Elfving.

The purpose of an EIR is to inform and include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project. Judge William Eflving writes “All conflicts in the evidence and any reasonable doubts must be resolved in favor of the agency’s findings and decision.”

There’s a conflict here.

Background or baseline, current or future, the PAMF EIR did not appear to provide readily answered traffic counts to Lead Agency, Planner Trudi Ryan, who prepared the report. Ryan emails a request to David J Powers 4 days prior to the Sunnyvale Council Hearing requesting Fehr and Peers to provide an estimate of the percent of traffic on Bayview and Carroll that are associated with PAMF

Estimate? Ryan also needed current and future conditions.

For goodness sake, if the Lead Agency Preparer is unable to locate the traffic counts in the Palo Alto Medical Foundation PAMF EIR, how can a reasonable person?

As well, the decision to choose “background” versus “baseline” traffic counts is a subjective decision, and what the community really wants to know, according to CEQA law, is how many vehicles will be traveling down my street due to the Palo Alto Medical Foundation PAMF Project?”

To provide a future estimate minimizes the actual impacts of traffic.

Regarding mitigation of the PAMF construction impacts, Judge William Elfving stated “hearing adequate disclosure of this impact and that the noise could not be reduced to below significant” misses the purpose of an EIR.

The complaint was that other feasible construction noise mitigation measures had NOT been discussed nor studied in the PAMF EIR. This statement misses the purpose and duty of preparing an Environmental Impact Report and is not adequate, in our opinion.

We will be challenging this decision and seeking the appellate court, and as our Attorney Zan Henson stated, “an appeal is mandatory.”

A big thanks to the community members who have relayed their support and gratitude for our advocacy regarding the Sunnyvale Heritage District Neighborhood.

Be sure to visit regularly, as updates will continue to be posted.


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