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By Eric Heinz 

On. Jan. 29, Riverside Superior Court Judge Daniel Ottolia ruled that most of the arguments the city of San Clemente and a homeowners association in the city have against The Toll Roads proposals can move forward in their civil lawsuits.

“(On Jan. 29), with minor exception, the court ruled completely in the city’s and The Reserve’s favor on their demurrers and on related motions,” said San Clemente city attorney Scott Smith.

A demurrer is a pre-trial motion suggesting essentially that a plaintiff’s (or petitioner’s) complaint should be dismissed because the complaint is not viable for adjudication.

What these rulings did was give some merit to their arguments, something The Reserve Maintenance Corporation in San Clemente and the city have litigated to achieve for about 18 months, Smith said.

The city is seeking to challenge the environmental compliance of a protective agreement that was completed in 2016 between the Transportation Corridor Agencies (TCA) and the Save San Onofre Coalition, a faction of nonprofit organizations, which settled a 15-year lawsuit. The Reserve initially challenged the Brown Act compliance in the way in which the TCA devised its several toll road proposals, some of which would go straight through San Clemente. The judge had ruled the statute of limitations had not expired in this claim.

One ruling went against the city in a minor claim, because the judge ruled the city “did not exhaust administrative remedies with the State Water Board,” Smith said, adding this was a minor portion of the arguments.

San Clemente city attorney Scott Smith explains to councilmember on Tuesday, Feb. 6, that a Riverside Superior Court judge sided that the city and The Reserve Maintenance Corporation could proceed with major portions of their lawsuits. Photo: Eric Heinz
San Clemente city attorney Scott Smith explains to councilmember on Tuesday, Feb. 6, that a Riverside Superior Court judge sided that the city and The Reserve Maintenance Corporation could proceed with major portions of their lawsuits. Photo: Eric Heinz

The city claims the TCA may not even have the authority to do what it’s proposed to construct because there already is a regional transportation governing board in the Orange County Transportation Authority and the city wants to know what leverage the law gives TCA.

Mayor Pro Tem Dan Bane is litigating on behalf of The Reserve Maintenance Corporation, but Scott Smith is litigating on behalf of the city. As a city councilmember, Bane contributes to voting on the dais to direct legal action for the city, but he does not litigate it himself.

Bane said Ottolia agreed the Brown Act argument is a factual determination and that the TCA had the right to settle lawsuits (such as the 2016 agreement) in closed session, but they couldn’t make large land-use decisions outside the public eye.

In one of the environmental matters, Smith said the judge sided with the city in being able to deputize the city attorney— him—to enforce the state’s Fish and Game code should any violations arise.

The next hearing date is set for April 15 in Riverside Superior Court, but the judge allowed the city to file a motion to accelerate that hearing date, Smith said.

“We want to get this in front of the court as soon as possible,” he said, adding that the TCA has spent $20 million in contracts in researching the potential toll road alignments, money that is paid from development fees from cities within the TCA membership.

The TCA is expected to publish a draft environmental impact report in 2021, when public comment is first expected to be available.

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comments (4)

  • Dan Bane is a kook, a liar and fraud.

  • True— Bane and the city “develop at any cost crew”, are trying to actually undo the Saving of Trestles Beach victory protections from a few years back—- clueless……shame

  • This toll road was denied originally because it proposed to take over 60 percent of a California State Park and it threatened to ruin one of the last natural watersheds on the west coast. A couple of years later, the TCA appealed to the Orange county waterboard. They denied it again because the TCA wasn’t forthcoming about where it would connect to the 5 freeway, building the toll road in segments was illegal and because it would ruin one of the last natural watersheds on the west coast. So then the TCA went to the San Diego water board. It was denied AGAIN because of the same reasons. Then just one month after the San Diego Water Board denied the TCA a permit to build the first 5 miles of a toll road threatening to take over San Onofre State Park, an appeal was filed once again to build this toll road. Then the TCA tried to convince the homeowners and the city of San Clemente to let them build the road. The TCA took this issue to Riverside..because “The TCA thinks that Riverside would be more Objective”. This is a quote from a newspaper article.
    Of course Riverside has no idea of Trestles, San Onofre State Park or this natural watershed They don’t live in San Clemente!
    I am deeply concerned about TCA’s unyielding efforts to build its destructive toll road through one of the last unspoiled watersheds in Southern California.
    In 2008, both the California Coastal Commission and the Bush administration rejected the toll road because of potentially devastating impacts to the coastline. Despite those decisions, TCA remains undeterred and now plans to build the road in segments. This segmentation approach is an obvious attempt to circumvent the decisions rejecting the road, and is illegal under both state and federal law. Please persist in opposing this Zombie toll road that threatens to take over state park land thereby setting a precedent for state park and public land grabs across the country. What will we tell our grandchildren when they ask why we gave up their inheritance of public lands? That it started here in San Clemente?

  • This is how I see this playing out. The TCA is looking at a long fight and a big picture. It is my opinion that they are chipping away at the community 1. convincing people that the SRF agreement is bad and somehow corrupt and undermining grass roots organizations that have long established reputations 2. using scare tactics suggesting they slam the toll road through Pico over the HS (I can’t believe anyone buys that) leaving them with one solution….! the south side, through Cristianitos. Which is the only reason I can summarize for Dan Bane to seek the abolition of the SRF Agreement. Then the TCA will have thier prize as they have always planned and everyone will sigh in relief that the giant Pico/hypothetical bridge over the high school didn’t happen like heroes. That bridge hypothesis was bologna from the start, a scare tactic. So many people worked thoughtfully on the SRF Agreement together. There is NOT one reason the Agreement has to be taken out to continue the fight. Not even Mr. Cord to the Rescue can provide an argument, just hypothetical scare tactics. This is my final offering on the subject. Just think about it. Does Dane Ban know better than the California Coastal Protection Network, California State Parks Foundation, Defenders of Wildlife, Endangered Habitats League, Natural Resources Defense Council, Sierra Club, Surfrider Foundation? These folks are not known for throwing towns under freeways, actually quite the opposite.

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