The Cal Bears scored a victory in a recent legal challenge to a planned expansion of athletic facilities near the historic University of California football stadium in Berkeley.

The project opponents' playbook included a long list of California Environmental Quality Act (CEQA) violations allegedly committed by the University of California (UC) Board of Regents. The blue and gold had a solid game plan. The regents used a tiered Environmental Impact Report (EIR), carrying forward relevant CEQA analysis from the first tier to a later document and providing detailed, site-specific analysis in the later tier.

The UC campuses utilize "long range development plans." The Berkeley campus 2020 long-range development plan and companion EIR were approved in 2005 (see CP&DR Public Development, June 2005; CP&DR In Brief, July 2005). To implement the plan, the university initiated an EIR for the "Integrated Projects" located within the southeast quadrant of the master plan area. These projects composed about 20% of the new gross square footage and 24% of the proposed new parking contemplated by the long-range plan. Contained within the Integrated Projects was a three-phased stadium project. Phase I involved a new athlete center. Completion of Phase I would accommodate relocation of sports facilities away from the stadium, at which time seismic repairs and upgrades to the stadium would take place as phases II and III.

At the time of EIR certification, only Phase I was presented to the regents for approval. On November 14, 2006, the full Board of Regents, sitting as the Grounds and Buildings Committee, recommended approval of the athlete center. Two days later, the board adopted the recommendation. On December 5, the Grounds and Buildings Committee (then consisting of 11 of 26 regents) certified the EIR, adopted a statement of overriding considerations because some project impacts could not be fully mitigated, and gave final approval to the athlete center project.

Various groups and individuals filed suit alleging violations of the Alquist-Priolo seismic safety act, and CEQA. Alameda County Superior Court Judge Barbara Miller granted a preliminary injunction preventing the athlete center from proceeding. After soliciting expert declarations from both parties addressing the building plans and the Alquist-Priolo Act claims, the court found for the project opponents on three of their Alquist-Priolo contentions and one CEQA claim. Tailoring a remedy to fit the violation, the court then ordered the regents to suspend approval of phases II and III until (1) the board either withdrew its proposal to increase the number of special events, or developed the evidence to support the conclusion that the impacts were significant and unavoidable, and (2) the board suspended approval of the athlete center until it could demonstrate the stadium alterations totaled less than 50% of the stadium value.

The regents quickly responded by eliminating the additional special events and the alterations to the stadium. Satisfied, the court dissolved the preliminary injunction, permitting construction to begin. Meanwhile, in the judicial equivalent of instant reply, the opponents filed a motion for a new trial and to set aside the judgment. This motion resulted in an amended judgment. The opponents then appealed, seeking an interim stay of construction, a request denied by the appellate court and California Supreme Court. On all Alquist-Priolo Act and CEQA issues, the First District Court of Appeal ruled favorably for the regents.

The Alquist-Priolo Act restricts construction activity on faults, including alterations to existing structures located on earthquake faults. The 77-year-old Memorial Stadium sits directly atop the Hayward fault. Although the athlete center would be physically separate from the stadium, the center's locker rooms and weight training facilities would be an integral part of future stadium activities. On an appeal of the trial court's procedure, the First District weighed the trial court's consideration of extra-record evidence to determine the question of Alquist-Priolo Act compliance. The extra-record evidence, via the declarations of experts, assisted the trial court in reviewing plans. 

Because there was no formal proceedings dealing with the issue of Alquist-Priolo Act compliance, the appellate court concluded that this was the type of informal or ministerial decision recognized by the Supreme Court in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, wherein extra-record evidence would be permissible because facts were in dispute. On the merits, the appellate court agreed with the trial court by ruling that the regents were not required to look at all three phases when determining whether or not the cost of the alteration exceeded 50% of the stadium's value – a Alquist-Priolo Act limitation on modifying structures located on faults.

The alleged CEQA violations ran the gamut: description of baseline geologic conditions, failure to recirculate the draft EIR, failure to disclose expert disagreement, project description, statement of objectives, adequacy of project alternatives, impacts to archaeological resources, biological impact analysis, findings, adequacy of the statement of overriding considerations. The opponents also challenged the sequencing, arguing that the regents approved the athlete Center prior to certifying the EIR. And opponents disputed the regents' delegation of EIR certification to the Grounds and Buildings Committee.

The unanimous three-judge appellate panel upheld all UC actions. In so doing, the appellate court applied a deferential standard of review, noting that perfection was not required. Not only did the EIR include analysis of required issues, the EIR employed the conservative practice of concluding that impacts were significant and unavoidable where there was meaningful potential for debate, a practice that served the university well on a number of arguments.

The appellate court concluded the regents were not required to recirculate the draft EIR based upon comment letters from the California Geological Survey and United States Geological Survey that recommended additional study, and ruled the letters did not constitute evidence contradicting the administrative record's geologic reports. Considering the various comment letters, Justice Martin Jenkins wrote, "Given the comprehensive public exchange regarding these impacts, we believe the underlying purposes of CEQA were adequately served even without additional public review of the EIR."

The project description was a challenge to the EIR preparers. This was a project EIR for the Integrated Projects, although less specificity was known as to the later elements. The court found that the minimal requirements for the project description (CEQA Guidelines § 15124) were met, and that additional detail could be inferred from the various topical discussions, such as those found in the transportation chapter. With respect to the later phases of the Integrated Projects that were less precisely stated, the EIR included a commitment to subsequent EIRs should the project description later prove to be inadequate – a strategy the appellate court accepted.

The appellate court disagreed with opponents' contention that the project objectives were too vague. While some components were broadly stated, the objectives were, in the opinion of the court, sufficient to permit meaningful development and consideration of alternatives. As to alternatives, the court upheld the regents' approach of looking at alternatives to the Integrated Projects as a whole, and noted the use of a matrix that compared the various alternatives.

The court also upheld the procedure for project approval. The regents had formally adopted rules regarding project approvals. As defined by these rules, approval took place on December 5, 2006, when the committee approved the project design, not on November 16, 2006, when the full board approved the project budget. The court upheld the process, largely based on the previously adopted rules. On the final procedural issue, the appellate court again deferred to the regents' rules that define the committee as the approving agency. As such, it was appropriate for the committee to certify the EIR, the court ruled.

The final issue for the appellate court was a review of the trial court's award of $51,000 in costs to UC for preparing the record. The trial court approved the costs but reduced the charge for the paralegal and adjusted the recovery to reflect the regents' degree of success on the merits (85%). The appellate court found no basis for modifying or reversing the award.

The Case:

California Oak Foundation v. The Regents of the University of California, No. 122511, 2010 DJDAR 14143. Filed September 3, 2010.

The Lawyers:

For California Oak Foundation: Stephan C. Volker, (510) 496-0600.

For University of California: Kelly L. Drumm, UC Office of General Counsel, (510) 987-9800