CITY FILES WRIT OVER BORCHARD; FIRMS WON'T TOUCH TROUBLED ROAD PROJECT.

Byline: Cecilia Chan Staff Writer

The city is trying once again to stop construction of the controversial Borchard Road extension because staff members cannot find an engineer willing to design elements to mitigate the steepness of the route.

The City Council voted 5-0 on Tuesday to direct City Attorney Mark Sellers to file an extraordinary writ with the state appellate court, asking it to review a portion of a pending case. Sellers said he will file the writ - which is rarely granted - in the next few days.

``It's a long shot but the council wants to make that effort,'' Sellers said Wednesday. ``We feel with the road under construction now, there is an emergency.''

Councilman Andy Fox said the city is seeking to overturn the trial court's order allowing the Borchard Road extension to be built, as designed, with a 12 percent grade.

``We need to do whatever we can from a legal standpoint to protect the rights of our citizens,'' he said Tuesday.

Although it won the court's approval of the 12 percent grade, the developers of 2,350-home Dos Vientos Ranch project agreed last month to allow the city to redesign Borchard with devices such as traffic circles, and to pay for them.

But Sellers said the city contacted at least three engineers to work on safety elements, and found none willing to tackle the project.

``All of them were concerned about liability and because of the existing litigation and the threat of new litigation, people making statements into the record that there will be new lawsuits filed as soon as there are accidents on the road,'' Sellers said. ``So you get enough of those statements made, then engineers say: We don't make enough money on the project for such a risk.''

The developers, Miller Bros. and Operating Engineers, sued the city last year for $100 million after it ordered work halted on the grading of the road. A judge eventually lifted the stop-work order and the developers finished the grading. They expect to go to bid next month to complete the road.

A hearing and status conference on the developers' lawsuit is set in November and Sellers believes the case won't be heard until next year.

A lawyer for one of the developers said it will fight the city's latest effort to derail the Borchard Road extension.

``Miller Brothers will vigorously oppose any attempt to overturn the Superior Court judgment,'' said attorney Nicki Carlsen. ``We think it was the correct judgment and we will file our response to any petition the city files with the court of appeal.''

Complicating the issue is a $661 million lawsuit filed in March against the developers by Laura Lee Custodio and the group Save Open Space. That suit claims the developers lied to city officials to gain approval of the 12 percent grade.

A judge earlier this month ruled the lawsuit had merit and could proceed. The order was stayed 90 days to give developers a chance to appeal.

Fox said if the city's writ or the $661 million lawsuit fails, the road will be built as proposed.

And if that happens, Fox said in a memo to the council, the Public Works Department will be directed to devise possible safety solutions for the road such as stop signs and traffic signal at Los Vientos Drive and Borchard Road.