The trials of Sisyphus are apt metaphors for that moment in the California Environmental Quality Act review process wherein parties believe they have reached the summit but in fact discover themselves at the bottom of the hill, only to repeat their past efforts. A recent decision involving a determination of infeasibility by California State University at San Diego, which, after the Supreme Court issued its decision in City of Marina v. Board of Trustees of California State (2006) 39 Cal.4th 341 (see CP&DR Legal Digest August 2006), was directed to set aside an earlier environmental impact report and to revise it consistent with Marina.
The second time around, the university rejected offsite traffic mitigation on the basis that the legislature refused to appropriate money for that purpose. On the basis that the university was required to adopt all feasible mitigation measures, SDSU's rejection for lack of appropriation was held to be insufficient, thus sending the university back up the CEQA hill again.
The case involves SDSU's adoption of a new master plan, which would provide for significant increase in student enrollment (from 25,000 full time students to 35,000, in addition to related facilities), and as a consequence, increased traffic and student use of transit. Following certification of the revised, post-Marina EIR, the City of San Diego, the Redevelopment Agency, and San Diego Metropolitan Transit System all filed petitions for writs of mandate challenging the approvals.
One of the key issues in the litigation was the university's finding of infeasibility as it related to offsite traffic impacts. The findings concluded that certain offsite facilities were the responsibility of the city and as no agreement had been reached with the city, CSU found that there was no certainty of mitigation. The EIR concluded that the impact would be significant and unavoidable. The approval documents also directed the university chancellor to seek additional funding from the state legislature for offsite traffic mitigation. The findings also concluded that as legislative funding was uncertain, that mitigation was not assured and that the impacts would remain significant and unavoidable.
The ensuing litigation centered on the effect and import of the California Supreme Court's decision in Marina, which recognized that, in certain circumstances, the ability of a state agency to implement a particular mitigation strategy may be subject to legislative appropriation. Ultimately, the appellate court in this case concluded that the matter of legislative appropriation was not the end of the analysis, as nothing precluded CSU from utilizing non-legislatively appropriated funds to fund the offsite mitigation ("For example, we presume a campus of CSU (e.g., SDSU) may receive revenues or other funds from a myriad of sources (e.g., tuition, student fees, revenue bonds, parking fees, and private donations).
Furthermore, in the context of the case, SDSU presumably will receive additional revenues from project-related sources (e.g., rent from Adobe Falls faculty and student housing, revenue from guests of the Alvarado hotel, fees charged to residents of the Project's new dormitories and/or other student housing, revenue from the new campus conference center, and revenue from the expanded and renovated student union)."
Thus, it would appear that, for publicly sponsored projects, this case stands to require a near-endless examination of funding options.
The opponents also challenged the alternatives analysis, arguing that the lead agency should have evaluated onsite operational changes which could have reduced or avoided the unmitigated impacts. The appellate court agreed with this argument. It is noteworthy that the appellate court did not find that the range of alternatives studied in the EIR was not a "reasonable range" designed to promote informed decision-making, but the appellate court only concluded that one or more additional onsite alternatives should have been studied.
(Comment: As to this issue, it appears that the appellate court deviated from the accepted standard of review of EIR alternatives. Applying the substantial evidence test, the appellate court did agree that CSU did calculate the amount of the fair fee correctly.)
The appellate court also agreed with the opponents that the EIR included improper deferred traffic mitigation. The text provided, ""SDSU shall develop a campus Transportation Demand Management ('TDM') program to be implemented not later than the commencement of the 2012/2013 academic year. The TDM program shall be developed in consultation with [SANDAG] and [MTS] and shall facilitate a balanced approach to mobility, with the ultimate goal of reducing vehicle trips to campus in favor of alternate modes of travel." (Italics in the original.) The appellate court concluded that this language did not rise to the required commitment to mitigate found necessary in cases like Communities for a Better Environment v. City of Richmond (see CP&DR Legal Digest May 2010) and Defend the Bay v. City of Irvine (see CP&DR Legal Digest Aug. 2004).
The appellate court also agreed that the EIR failed to evaluate the impact of the project on transit system operations. The system operator submitted comments questioning the ability of the transit system to absorb the future student school trips assumed to be provided by the system without further transit system expansion. The fact that CEQA's Appendix G does not list transit does not mean that transit-related impacts are exempt from CEQA evaluation. The court further reminded lead agencies that the duty to investigate and analyze falls to the lead agency, not to the agency whose service capabilities may be adversely impacted.
City of San Diego v. Board of Trustees of the California State University (2011) 201 Cal.App.4th 1134. Filed Dec. 13, 2011.
William W. Abbott is a partner in the Sacramento law firm of Abbott & Kindermann, LLP.