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Home My WebLink AboutMINUTES - 12081992 - 1.23 /. Z_ 3 1M BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on December 8 , 1992 , by the following vote: AYES: Supervisors Powers, Fanden and Schroder NOES: Supervisors Torlakson and McPeak ABSENT: None ABSTAIN: None SUBJECT: Litigation Settlement -- Sierra Club, et al . v. County of Contra Costa, et al . , Superiot Court No. C 89-04637, and The Sierra Club, et a1 . v. County of Contra Costa, et al ., Solano County Superior Court No. 110025 County Counsel having recommended that the Board of Supervisors approve the attached settlement agreement; NOW, THEREFORE, IT IS BY THE BOARD ORDERED THAT: 1. The attached Settlement Agreement is approved. 2 . The Board Chairperson is authorized to sign the agreement on behalf of the .County. 0 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Su rviso on the dole shown. ATTESTED:Pe ."J &_ f yam,—.. PHIL BATCHELOR,Clerk of the Board of Supervisors and County Administrator By /l iro",'�""► r)�,)tjty Orig. Dept: County Counsel CC: County Administrator Community Development Attn: Dennis Barry, Dep. Director SETTLEMENT AGREEMENT The parties to this settlement agreement are The Sierra Club, the East Bay Regional Park District ("the District"), the Marsh Creek Association, The Clayton Regency Residents' Association, and the City of Brentwood, hereinafter collectively referred to as the "Plaintiffs," and the County of Contra Costa ("County"), and Waste Management of North America, Inc. ("Waste Management"). This agreement is made with reference to the following facts. WHEREAS, on or about October 17, 1989 the County approved certain amendments of the County's General Plan, including one designating an area in Eastern Contra Costa County known as Marsh Canyon (hereinafter referred to as the "Marsh Canyon Site") as suitable for the siting of a landfill, then being proposed by Waste Management, and the County further approved an environmental impact report ("EIR") relating thereto; and WHEREAS, on November 14, 1989, the Sierra Club and Marsh Creek Association filed Action No. 89-04637 in the Contra Costa County Superior Court, entitled Sierra Club, et al. v. County of Contra Costa, et al., (hereinafter referred to as "Marsh I"), challenging the County's approval of the amendments of its General Plan to the extent that they related to the proposed Marsh Canyon Site and naming Waste Management as a real party in interest; and WHEREAS, on or about March 20, 1990, the County issued to Waste Management a Land Use Permit for the construction of a landfill at the Marsh Canyon Site, after certifying an EIR thereon, and thereafter on or about August 13, 1990 the County and Waste Management entered into a Development Agreement relating to the development of the Marsh Canyon Site as a landfill and on or about November 6, 1990 entered into a Landfill Franchise Agreement relating to the Marsh Canyon Site; and WHEREAS, on April 20, 1990 the Sierra Club, Marsh Creek Association, and the Clayton Regency Residents Association filed Action No. 90-01760 in the Contra Costa County Superior Court entitled Sierra Club, et al. v. County of Contra Costa, et al. (hereinafter referred to as "Marsh II") against the County and Waste Management concerning the County's approval of the Land Use Permit for the Marsh Canyon Site and the certification of the EIR thereon, and later the City of Brentwood and the District joined as plaintiffs in such action and it was transferred to the Solano County Superior Court where it was assigned Action No. 110025; and WHEREAS, on July 5, 1991 the Contra Costa County Superior Court issued its Final Judgment in Marsh I in favor of the County and Waste Management and against the plaintiffs therein, and such judgment was thereafter on August 30, 1991, appealed by plaintiffs to the First Appellate District and such appeal is now pending as Appeal No. A054982; and 1 WHEREAS, on August 7, 1992, the Solano County Superior Court granted Final Judgment in Marsh II in favor of the plaintiffs and against the County and Waste Management, and thereafter on September 18, 1992 the County and Waste Management filed an appeal therefrom to the First Appellate District and plaintiffs filed .a cross appeal therefrom, such appeals and cross appeals now pending as No. A059118; and WHEREAS, the parties to this agreement are desirous of settling the above cases and proceedings. NOW THEREFORE the parties agree as follows: 1. The County will set for hearing before its Board of Supervisors a proposal for removal of the designation of the Marsh Canyon Site as suitable for a landfill in the County's current General Plan. Except as expressly stated in this agreement, nothing herein is intended to affect the right of the Board of Supervisors to review and consider the proposed amendment. Plaintiffs agree that they will expressly support such proposed amendment, either orally or in writing, during the period of its consideration by the Board of Supervisors, but only to the extent that such proposed amendment removes the designation of the Marsh Canyon site as suitable for a landfill in the County's current General Plan and provided further that the failure of any one of the plaintiffs to support such amendment shall not be a basis for non-compliance with this Agreement. 2. In the event the Board of Supervisors adopts the proposed General Plan amendment referred to in Paragraph 1, Waste Management and its subsidiaries and affiliates agree not to pursue further any landfill project at the Marsh Canyon Site, and Waste Management (and the County, as necessary) agree to the following actions to further implement this commitment: (a) Waste Management will withdraw the applications to the County for a Land Use Permit and Parcel Map covering the Marsh Canyon Site. (b) Waste Management and the County will terminate the Development Agreement and Franchise Agreement. (c) Waste Management will obtain the cancellation of permits or approvals from the Regional Water Quality Control Board and the Bay Area Air Quality Management District relating to the Marsh Canyon Site. Waste Management hereby represents that there are no other permits relating to the Marsh Canyon Site that have been obtained and no other permit applications now pending relating to the Marsh Canyon Site. (d) Waste Management agrees not to assign to any third parties its rights under any of the preceding agreements, approvals or permits, and hereby represents that it has made no prior such assignment. 2 (e) Waste Management agrees not to otherwise assist anyone else in the application for or development of a landfill at the Marsh Canyon Site. 3. Also, in the event the Board of Supervisors adopts the proposed General Plan amendment referred to in Paragraph 1, the County and Waste Management agree to each pay $25,000 in attorney's fees to the Plaintiffs,provided that the $25,000 paid by the County shall be spent or devoted by the Plaintiffs in their discretion on an environmental project, purpose, cause, or matter of their choosing and provided further that the $25,000 paid by the County shall not be spent on future litigation against the County. Such payments shall be made by certified or cashiers checks made payable to Roger Beers, and the allocation of such payments among the Plaintiffs and their attorneys shall not be affected by this Agreement. 4. Upon occurrence of the conditions specified in paragraphs 1, 2 and 3 above, the following further actions shall be taken: (a) All parties will dismiss any existing appeals and cross-appeals, from the Final Judgment issued on August 7, 1992 in Marsh II, Action No. 110025. That Final Judgment shall remain in full force and effect. (b) The Sierra Club and Marsh Creek Association will dismiss their appeal in Marsh I (No. A054982) now pending in the First Appellate District, Division One. The Final Judgment of the lower court in that case shall remain in full force and effect. (c) Except as provided in paragraph 3 above, all parties in Marsh I and Marsh II will bear their own costs and fees incurred therein. 5. In the event that any of the actions required of Waste Management and/or the County herein and referred to in paragraphs 1, 2 and 3 of this Agreement have not been completed within 90 days of the date of this agreement, plaintiffs shall have the right to declare this Agreement null and void, by written notice to the County and Waste Management within ten days thereafter. 6. Any notice required by this Agreement or other documents sent pursuant to this Agreement shall be mailed to the parties and their counsel at the addresses listed on Exhibit A. Dated: December l , 1992 COUNTY RA COSTA By Attest: Phil Batchelor, Clerk of Chair, Board of Supe?Visors the Board of Supervisors and County Administrator By _!d_� Deputy 3 Dated: December ' 1992 WASTE MANAGEMENT OF NORTH AMERICA, INC. By Ak � Dated: December , 1992 EAST BAY REGIONAL PARK DISTRICT By Ted Radosevich, Esq. District Counsel East Bay Regional Park District P. O. Box 5381 2950 Peralta Oaks Court Oakland, CA 94605-5369 Dated: December , 1992 SIERRA CLUB By Dated: December . , 1992 CITY OF BRENTWOOD By Don Russell, City Manager City of Brentwood 708 Third Street Brentwood, CA 94513 4 Dated: December , 1992 WASTE MANAGEMENT OF NORTH AMERICA, INC. By Dated: December , 1992 EAST BAY REGIONAL PARK DISTRICT By �� / t 0 Ted Radosevich, Esq. District Counsel East Bay Regional Park District P. O. Box 5381 2950 Peralta Oaks Court Oakland, CA 94605-5369 Dated: December , 1992 SIERRA CLUB By Dated: December , 1992 CITY OF BRENTWOOD By Don Russell, City Manager City of Brentwood 708 Third Street Brentwood, CA 94513 4 1 , Dated: December , 1992 WASTE MANAGEMENT OF NORTH AMERICA, INC. By Dated: December , 1992 EAST BAY REGIONAL PARK DISTRICT By Ted Radosevich, Esq. District Counsel East Bay Regional Park District P. O. Box 5381 2950 Peralta Oaks Court Oakland, CA 94605-5369 Dated: December �1992 SIERRA CLUB B zaaA Dated: December , 1992 CITY OF BRENTWOOD By Don Russell, City Manager City of Brentwood 708 Third Street Brentwood, CA 94513 4 Dated: December , 1992 WASTE MANAGEMENT OF NORTH AMERICA, INC. By Dated: December , 1992 EAST BAY REGIONAL PARK DISTRICT By Ted Radosevich, Esq. District Counsel East Bay Regional Park District P. O. Box 5381 2950 Peralta Oaks Court Oakland, CA 94605-5369 Dated: December , 1992 SIERRA CLUB By Dated: December 10 , 1992 CITY OF BRENTWOOD By Don Russell, Cifj Manager City of Brentwood 708 Third Street Brentwood, CA 94513 4 Dated: December 1992 MARSH CREEK ASSOCIATION Brian Kruse, Secretary Marsh Creek Association 18201 Marsh Creek Road Brentwood, Ca 94513 Dated: December , 1992 CLAYTON REGENCY RESIDENTS ASSOCIATION By Wilbert Cossel, Vice President Clayton-Regency Residents' Association 16711 Marsh Creek Road Clayton, CA 94517 APPROVED AS TO FORM: McCUTCHEN, DOYLE, BROWN & ENERSON By STEPHEN KOSTKA P. O. Box V Walnut Creek, CA 94596-1270 Attorneys for Waste Management of North America, Inc. 5 Dated: December , 1992 MARSH CREEK ASSOCIATION By Brian Kruse, Secretary Marsh Creek Association 18201 Marsh Creek Road Brentwood, Ca 94513 Dated: December , 1992 CLAYTON REGENCY RESIDENTS ASSOCIATION By - D Wilbert Cossel, Vice President Clayton-Regency Residents' Association 16711 Marsh Creek Road Clayton, CA 94517 APPROVED AS TO FORM: McCUTCHEN, DOYLE, BROWN & ENERSON By STEPHEN KOSTKA P. O. Box V Walnut Creek, CA 94596-1270 Attorneys for Waste Management of North America, Inc. 5 Dated: December , 1992 MARSH CREEK ASSOCIATION By Brian Kruse, Secretary Marsh Creek Association 18201 Marsh Creek Road Brentwood, Ca 94513 Dated: December , 1992 CLAYTON REGENCY RESIDENTS ASSOCIATION By Wilbert Cossel, Vice President Clayton-Regency Residents' Association 16711 Marsh Creek Road Clayton, CA 94517 APPROVED AS TO FORM: McCUTCHEN, DOYLE, BROWN & ENERSON - 22;21� zf6A— - By STEP t KOSTKA P. O. Box V Walnut Creek, CA 94596-1270 Attorneys for Waste Management of North America, Inc. 5 VICTOR J. WESTMAN COUNTY COUNSEL By. SILVANO B. MARCHE I Assistant County Counsel P. O. Box 69, Co. Administration Bldg. 651 Pine Street, 9th Floor Martinez, CA 94553 Attorneys for County of Contra Costa and Contra Costa County Board of Supervisors ROGERLIBEERS 260 California Street, Suite 803 San Francisco, CA 94111 Attorney for Plaintiffs in Action No. 110025 DEBORAH REAMES 180 Montgomery Street #1400 San Francisco, CA 94104 Attorney for Plaintiffs Sierra Club and Marsh Creek Association Action No. 110025 MICHAEL LOZEAU 709 Baker Street San Francisco, CA 94115 Attorney for Plaintiffs in Appeal No. AO54982 6 VICTOR J. WESTMAN COUNTY COUNSEL By SILVANO B. MARCHESI Assistant County Counsel P. O. Box 69, Co. Administration Bldg. 651 Pine Street, 9th Floor Martinez, CA 94553 Attorneys for County of Contra Costa and Contra Costa County Board of Supervisors ROGE EERS 260 California Street, Suite 803 San Francisco, CA 94111 Attorney for Plaintiffs in Action No. 110025 d��'►� /C.0 dyNticiJ DE110MAR REAMES 180 Montgomery Street #1400 San Francisco, CA 94104 Attorney for Plaintiffs Sierra Club and Marsh Creek Association Action No. 110025 MICHAEL LOZEAU 709 Baker Street San Francisco, CA 94115 Attorney for Plaintiffs in Appeal No. AO54982 6 VICTOR J. WESTMAN COUNTY COUNSEL By SILVANO B. MARCHESI Assistant County Counsel P. O. Box 69, Co. Administration Bldg. 651 Pine Street, 9th Floor Martinez, CA 94553 Attorneys for County of Contra Costa and Contra Costa County Board of Supervisors ROGE EERS 260 California Street, Suite 803 San Francisco, CA 94111 Attorney for Plaintiffs in Action No. 110025 DEBORAH REAMES 180 Montgomery Street #1400 San Francisco, CA 94104 Attorney for Plaintiffs Sierra Club and Marsh Creek Association Action No. 110025 MICHAEL LOZEATJ . 709 Baker Street San Francisco, CA 94115 Attorney for Plaintiffs in Appeal No. AO54982 6 Exhibit A Notices required by the Agreement should be addressed as follows: 1. To the County of Contra Costa: Director of Community Development Contra Costa County Administration Building 651 Pine Street Martinez, CA 94553 Telephone: (510) 646-2026 Facsimile: (510) 646-1309 with a copy to: County Counsel Contra Costa County Administration Building 651 Pine Street, Ninth Floor Post Office Box 69 Martinez, CA 94553-0116 Telephone: (510) 646-2074 Facsimile: (510) 646-1078 2. To Waste Management of North America, Inc.: Mike O'Brien Waste Management of North America, Inc. 18500 Von Karman, Suite 900 Irvine, CA 92715 with a copy to: Stephen L. Kostka McCutchen, Doyle, Brown & Enerson P.O. Box V 1331 North California Blvd. Walnut Creek, CA 94596 Telephone: (510) 937-8000 7 3. To East Bay Regional Park District: Ted Radosevich, Esq. District Counsel East Bay Regional Park District P. O. Box 5381 2950 Peralta Oaks Court Oakland, CA 94605-0138 Telephone: (510) 635-0135 4. To the City of Brentwood: Don Russell, City Manager City of Brentwood 708 Third Street Brentwood, CA 94513 5. To the Sierra Club: Chairperson, S.F. Bay Chapter Sierra Club 5237 College Avenue Oakland, CA 94618 6. To Marsh Creek Association: Brian Kruse Marsh Creek Association 18201 Marsh Creek Road Brentwood, CA 94513 7. To Clayton Regency Residents Association: Wilbert Cossel, Vice President Clayton-Regency Residents' Association 16711 Marsh Creek Road Clayton, CA 94513 8. Copies of notices to any of the Plaintiffs should be sent to: Roger Beers Law Office of Roger Beers 260 California Street, Suite 803 San Francisco, CA 94111 8 • ,:� Deborah Reames Sierra Club Legal Defense Fund 180 Montgomery Street #1400 San Francisco, CA 94104 Telephone: (415) 627-6700 Facsimile: (415) 627-6740 Michael Lozeau 709 Baker Street San Francisco, CA 94115 Telephone: (415) 775-4520 Facsimile: (415) 775-0569 9