By William W. Abbott
Feasibility, or its Bizarro World counterpart (fn1) infeasibility, is an integral part of CEQA analysis. Feasibility is defined by the Guidelines as follows: “. . . capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors.” (Guidelines, § 15364) A mitigation measure may be determined by the lead agency to be infeasible and on that basis, would not be required as a condition of project approval. Unlike other areas of CEQA practice, there has been less frequent and less critical analysis of what constitutes a valid finding of infeasibility. A recent court decision begins to shed light on what is likely to be a new chapter of CEQA challenges.
The Grossmont-Cuyamaca Community College District prepared a master plan, approving twenty new and remodeling construction projects. The EIR forecasted substantial increases in student population, triggering a significant increase in offsite traffic impacts. With respect to those impacts, the District found that it was legally and economically infeasible for the District to pay for offsite improvements. The County of San Diego disagreed with the infeasibility determination, and filed suit to set aside the EIR and master plan approval.
With respect to offsite mitigation of traffic impacts, the appellate court reviewed the relevant statutes governing community college construction. First, as a general proposition, the court confirmed that CEQA by itself does not create the legal basis for mitigation. Rather, the authority to mitigate must be based upon separate legal authority. Next, the court found no words of limitation which would support the District’s position that it lacked the legal authority to expend funds offsite on improvements in the control of the County. The court then reviewed the Districts claim of economic infeasibility. As local governments are already aware (but apparently not the District), a claim of economic infeasibility must be based upon substantial evidence in the record. In this case, there was none. “The administrative record contains no estimate of the District’s proportional share of off-campus traffic mitigation measures identified in the final EIR. Without evidence of the amount of any such cost, we must conclude there is no substantial evidence to support the District’s claim that mitigation of the adverse project-related off-campus traffic impacts is economically infeasible.” Sounds like the District didn’t finish its homework assignment. County of San Diego v. Grossmont-Cuyamaca Community College District (2006) 141 Cal.App.4th 86.
fn1 For the unenlightened, Bizarro World is part of the Superman legacy; an existence in which everything is the opposite of the Earth Superman knew. The subject also managed to find its way into The Seinfeld Show.
William W. Abbott is a partner with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.