Warm Springs BART Funding Litigation

On February 26, 2009, former BART Directors Sherman Lewis and Roy Nakadegawa, and the Transportation Solutions Defense and Education Fund, TRANSDEF, filed a taxpayers' suit against the Metropolitan Transportation Commission (MTC) and other agencies and their senior staff, asking the Alameda County Superior Court to prevent the transfer of over $315 million to the Warm Springs BART Extension project. Plaintiffs assert this would be an illegal expenditure of public funds, because these agencies violated the will of the voters when they ignored funding restrictions in recent ballot measures. MTC is the Bay Area’s transportation financing agency. The Warm Springs extension would extend BART to a vacant industrial area five miles south of the current Fremont station.

Alameda County Measure B
Voters in Alameda County approved Measure B in 2000, the levy of a half cent transportation sales tax. ACTIA, the Alameda County Transportation Improvement Authority, is the public agency responsible for the distribution of the sales tax revenues according to the voter-approved expenditure plan. One of the projects in the plan is the 5 mile long BART Warm Springs extension within the city of Fremont. On February 26, 2009, ACTIA approved funding for the construction of the Warm Springs BART extension.

The Measure B plan provides, in part, “This project funds the first phase of a BART rail extension that will ultimately extend into Santa Clara County. Funds for construction of the first segment of the BART rail extension to Warm Springs in southern Fremont may not be used until full funding for the rail connection to Santa Clara County is assured.” ACTIA approved sending $224.4 million to the Warm Springs Extension.

However, funding for the BART extension to San Jose is far from assured. Besides plummeting sales tax revenues, VTA’s project budget presumes a $750 million grant from the federal government, which VTA has not yet even applied for. Plaintiffs are asking the Court to find that ACTIA violated the terms of Measure B by approving construction funding for the BART extension.

Regional Measure 2
In 2004, voters in the Bay Area approved Regional Measure 2, which raised the toll on state-owned bridges in the Bay Area by a dollar. MTC is authorized to spend RM2 funds on a specific list of projects, including the Dumbarton Rail Corridor and the Warm Springs BART Extension.
On January 28, 2009, MTC reassigned $91 million from the Dumbarton Rail Corridor to the Warm Springs BART Extension. MTC asserted that it was authorized to make that transfer, because the the project was to be “implemented with other funds not derived from tolls” (Regional Measure 2 language) some time between 2019 and 2027. Plaintiffs argued that this exceeded the Measure’s provision because the transfer would delay the project for more than a decade and provide less funding because of inflation.

Also, the substitute project would not be “within the same bridge corridor.” The Dumbarton Rail Project is an east to west crossing of the Bay and would connect with Caltrain, Capitol Corridor Amtrak trains (Sacramento to San Jose), Union City BART and the Altamont Commuter Express (Stockton to San Jose). The Warm Springs Extension is a north to south extension of BART that does not cross the Bay and has no connection with any other rail project. In short, it does nothing towards meeting one of the goals of the Plan, which calls for “regional transit connectivity.”

Plaintiffs are asking the Court to find that MTC violated the terms of Regional Measure 2 by approving a transfer of funds to the BART extension.

In short, these government agencies ignored legal restrictions established by the voters in their eagerness to funnel $315+ million to the Warm Springs BART extension.

According to Sherman Lewis, a BART director who represented part of Alameda County from 1993-1996, “These agencies take voters’ money from one project and spend it on something else. Stewardship is making sure the money stays where the voters intended.”

Roy Nakadegawa, a BART director who represented another part of Alameda County from 1992-2004, states “A BART extension to Warm Springs can’t be built with Measure B money unless there is money to connect it to Santa Clara County. That money doesn’t exist—and shouldn’t. A BART extension to San Jose would waste many billions of dollars.”

David Schonbrunn, President of TRANSDEF stated, “We have better and less expensive ideas for connecting the South Bay to the East Bay. Politicians have been fixated on BART, when they should be thinking High–Speed Rail.”

The case is Lewis, et al. v. Metropolitan Transportation Commission, et al.

Here are the documents Plaintiffs filed with the court:


Memorandum of Points and Authorities

Declaration of David Schonbrunn

Declaration of Thomas Rubin

Reply Points and Authorities (in response to Objections)

Here are the documents filed by the Defendents:

Metropolitan Transportation Commission

Alameda County Transportation Improvement Authority


City of Fremont

In spite of the merits of TRANSDEF’s case, the combination of threats by MTC and the lack of interest in the suit by supporters of the Dumbarton Rail Project forced the dismissal of this case.