BUSWAY ILLEGAL, FOES SAY CRITICS CONTEND 1991 STATE LAW BARS PROJECT.

Byline: Dominic Berbeo Staff Writer

A single word in a decade-old state law may be the key to whether the San Fernando Valley gets an east-west rapid busway after years of debate.

Opponents of the recently approved busway along the Burbank-Chandler corridor say the mass transit project is prohibited under a 1991 state law that regulated the route's right of way. The law prohibits ``any exclusive public mass transit guideway'' unless it's underground.

The key word is ``guideway,'' say opponents of the MTA project. They say the dedicated bus route is a guideway, making it illegal.

Proponents of the plan say it's a bus lane and some hedges, not a guideway.

The argument is more than a game of semantics.

Opponents are preparing a possible legal challenge of the entire $285 million project before construction starts in 2003.

``I think it's illegal, and the state law always contemplated a more friendly transportation plan for the area,'' said former state Sen. David Roberti, who was Senate president pro tem when the law passed.

The legislation was sponsored by former Sen. Alan Robbins and has been blamed for the Valley losing its lead position for a rail system to the Eastside and Westside and having to settle for a busway.

The bus route between the North Hollywood Metro Red Line subway station and Warner Center was approved July 26 by the Metropolitan Transportation Authority board of directors. The vote marked the end of a decades-long struggle to bring high-speed mass transit across the Valley.

The busway would follow the right-of-way of the former Burbank Branch line of the Southern Pacific Railroad, which was regulated by the 1991 law known as the ``Robbins bill.''

Robbins' bill, SB 211, allowed the county's transportation commission - which later merged with another agency to form the MTA - to buy the rights to the 14-mile stretch of railway.

The bill contained regulations on any future use of the property, including the addition of Section 130265 to the Public Utilities Code to prohibit ``any exclusive public mass transit guideway'' from being built within one mile of the Tujunga Wash unless it is constructed underground - in short, a subway.

Although other parts of the Robbins bill specifically mentioned rail projects, that section did not - leading some officials to say it may have been intended to apply to all mass transit, including a busway.

``It strikes me that before there is any construction on a high-speed bus line, the whole process is open to litigation,'' said Roberti, who is running in the Sept. 11 special election for Los Angeles City Council in the 4th District, which includes the eastern part of the MTA busway route in North Hollywood and Valley Village.

Last year, Gov. Gray Davis signed the $5 billion Traffic Congestion Relief Fund, which specifically named the busway among funded projects. The MTA plans to move ahead with development of the busway.

``We believe we're on solid legal ground here,'' said MTA spokesman Marc Littman. ``The governor and the Legislature did ample research before allocating $145 million for this project.''

Robbins, who still lives in Southern California, said he recalls that rail projects were the focus of the hearings that led to the bill but said it is possible that the final intention was to protect the disputed area from any mass transit unless it was underground.

``The only way to resolve the intention of the bill would be to look at the files, transcripts and correspondence included in the legislative hearings that led up to the compromise bill,'' Robbins said.

In March 2000, the state Legislative Counsel issued a legal opinion at the request of Assembly Speaker Robert Hertzberg, D-Van Nuys, as to whether the Robbins bill prohibits a busway.

In their opinion, state lawyers referred to the Webster's Dictionary definition of a guideway as ``a channel, slot, or track in which something is fitted so that its line of motion is controlled.''

According to the opinion, use of the term in past legislation has not referred to buses, and did not in this case, either.

Rich Zeiger, a spokesman for Hertzberg, said the Assembly speaker was satisfied with that opinion.

But a legal opinion by the Los Angeles County Counsel in May 2000 questioned why the word ``rail'' was used in other parts of the Robbins bill but not in the section now in question.

``It may be that the difference in language between the two subdivisions was nothing more than an oversight and that neither reference includes a dedicated busway,'' the County Counsel's opinion stated. ``On the other hand, an argument could be made that the language difference is intentional with the purpose of including a dedicated busway.''

However, Steven Carnevale, the assistant county counsel who prepared the opinion, said a court would not likely find in favor of opponents because when two state statutes are in conflict, the newer law takes precedent.

And, state lawmakers and the governor could end any uncertainty by approving a new measure stating their intent.

If there is a court fight over the Robbins bill, the cost of digging out the hearing files and fighting the MTA could be an expensive burden for busway opponents.

``This is a major lawsuit that could cost six figures to pursue,'' said Gary Blasi, a UCLA law professor specializing in challenges to government agencies. ``But in the end, someone in a black robe will have to decide, and sometimes even billion-dollar lawsuits can hinge on a phrase or even a comma.''

Opponents are gathering in coming weeks to find out if they have the resources to challenge the MTA.

``This busway is illegal,'' said Amnon Charash of the Concerned Citizens Transit Coalition. ``The community is alarmed and outraged by (the MTA's) vote to approve this.''

Charash said there are also questions about the accuracy of statements in the required environmental impact report prepared by the MTA. Those questions could be part of a lawsuit if busway opponents marshal enough resources for the legal battle.

``Money talks,'' Charash said. ``But it's very hard to imagine the community would go down without swinging.''

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Map: Tujunga Wash

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