By William W. Abbott

Whether you attribute the expression “the best defense is a good offense” to Vince Lombardi, Bear Bryant, General Carl Von Clausewitz (On War, 1873) or Sun Tzu (Art of War, 6th Century, B.C.), the same holds true in CEQA. The Cal Bears scored a well deserved win in a recent legal challenge to a Regent approved expansion of the school’s athletic facilities, to be located near the historic Berkeley football stadium. (California Oak Foundation v. The Regents of the University of California (September 3, 2010, Case No. A122511____ Cal.App.4th ____.) Appellants’ playbook included a near endless list of California Environmental Quality Act (CEQA) offenses (e.g. project description, project objectives, impact analysis, mitigation measures, alternatives and findings) against which the blue and gold defense successfully held the line. Along the way, there were some noteworthy plays, discussed below.

In this case, the Regents had a solid game plan from the outset, using a tiered Environmental Impact Report (EIR) approach, carrying forward relevant CEQA analysis from the first tier to the later document, and providing detailed site specific analysis in the later tier. 

The various UC campuses utilize Long Range Development Plans. The Berkeley campus 2020 Long Range Development Plan (LRDP) and companion EIR were approved in 2005. In implementation of the LRDP, the University initiated an EIR for projects (Integrated Projects) located within the southeast quadrant of the master plan. These projects consisted of about 20 percent of the new gross square footage and 24 percent of the proposed new parking contemplated by the LRDP. Included within the Integrated Projects was the three phased Stadium project. Phase I included a new Athlete Center. Completion of Phase 1 would accommodate relocation of sports facilities from the Stadium, at which time seismic repairs and upgrades to the Stadium would take place (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 Regents board, sitting as the Grounds and Building Committee, recommended approval of the Athletic Center. Two days later, the Regents adopted the recommendation. On December 5, the Grounds and Building Committee (then consisting of 11 of 26 Regent members) certified the EIR and gave final approval to the Athletic Center project, and adopted a statement of overriding considerations.

Various groups and individuals filed suit, alleging violation of the Alquist-Priolo Act, and CEQA. The trial court judge granted a preliminary injunction preventing the Athlete Center from proceeding. At the conclusion of the trial, the judge solicited expert declarations from both parties addressing the building plans and the Alquist-Priolo Act claims. The court found for the Petitioner on three of its Alquist-Priolo claims and only one CEQA claim, and rejected the balance. Using its discretionary power to tailor a remedy to fit the violation, the Court then issued a peremptory writ ordering the Regents to suspend approval of Phases II and III until (1) it either withdrew its proposal to increase the number of special events, or it developed the evidence necessary for the conclusion that the impacts were significant and unavoidable, and (2) suspend approval of the Athlete Center until it could demonstrate that the alterations to the stadium were less than 50 percent of the stadium value. The Regents quickly responded eliminating the additional special events and the alterations to the Stadium. Satisfied that the Regents had complied with the Court’s order, the Court ordered the preliminary injunction dissolved, permitting construction to begin. At roughly the same time, in the judicial equivalent of the instant re-play, petitioners filed a motion for a new trial and to set aside the judgment. This motion resulted in an amended judgment. Petitioners then appealed, seeking an interim stay of construction, a request denied by the appellate court and California Supreme Court.

The appellate court ruled favorably for the Regents as to all issues. While much of the appellate decision is the traditional CEQA he-said she-said grind through the administrative record, there are interesting aspects of the decision. The Alquist-Priolo Act restricts construction activity on faults, including alterations to existing structures which are located on faults. The Athlete Center was physically separate from the Stadium. The Center would be an integral part of the future Stadium activities by providing locker room and weight training facilities. The appellate court then applied an abuse of discretion standard (as compared to de novo review) to the trial court’s determination that the project did not violate the Alquist-Priolo Act. The appellate court ruled that it was appropriate for the trial court to consider extra-record evidence to determine the question of compliance. The extra-record evidence, via the declarations of the experts, came in for purposes of assisting the trial court in the consideration of the plans as it related to Alquist-Priolo compliance. As there was no formal proceedings dealing with this issue, 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 if there were facts in dispute. Also with respect to the Alquist-Priolo Act, the appellate court sided with the trial court saying that the Regents were not required to look at all three phases when determining whether or not the cost of the alteration exceeded 50 percent of the Stadium’s value, one of the limitations found in the Alquist-Priolo Act when modifying structures located on earthquake faults.

The alleged CEQA violations ran the gamut: description of baseline geologic conditions, failure to recirculate the DEIR, 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. Appellants also raised an issue of the sequencing, arguing that the Regents approved the Athlete Center prior to certifying the EIR, along with an argument about delegation of the EIR certification duty to the Building and Grounds committee. As against each claimed violation, the appellate court upheld the Regent’s 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 which served the University well on a number of arguments. The appellate court concluded that the Regents were not required to recirculate the DEIR based upon comment letters from the California Geological Survey and United States Geological Survey which recommended an additional survey, but the letter did not constitute evidence contradicting the geologic reports in the administrative record. Looking at the various comment letters on this issue, the appellate court concluded that there had been sufficient public discourse on this issue to satisfy CEQA.

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 the minimal requirements for the project description (Guidelines § 15124) were met, and that additional detail could be inferred from the various topical discussions such as that found in the transportation chapter. With respect to the later phases of the Integrated Projects which were less precisely stated, the EIR included a commitment to do later EIRs should the project description later prove to be inadequate, a strategy which was viewed favorably by the appellate court.

The appellate court also disagreed 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 which compared the various alternatives.

Often, first tier EIR mitigation measures seem to disappear by the time the second tier CEQA document unfolds. Not here. Again the appellate court recognized the efforts of the Regents in carrying forward the relevant mitigation measures in archaeology and biological impacts.

With respect to the procedural issues associated with project approval, the Regents had formally adopted rules regarding what constitutes project approval. As defined by these rules, approval took place on December 5, 2006 when the Regents approved the project design, not on November 16, 2006 when the budget was approved. Again, the Regents’ practice was upheld largely due to the previously adopted procedures defining the “approval” date. As to the final procedural issue, the appellate court also deferred to the Regent’s rules which define the Committee as the approving agency, and as such, it was appropriate for the Committee to certify the EIR. It pays to have a game book.

The final issue for the appellate court was a review of the trial court’s award of costs of approximately $51,000.00 to the Regents for preparing the record. In awarding costs, the trial court approved the costs associated with preparing the record, but reduced the charge for the paralegal, and adjusted the recovery to reflect the Regents’ degree of success on the merits (85%). Generally, the appellate court will not disturb the trial court’s determination absent a clear abuse of discretion, and the appellate court found no basis for modifying or reversing the award.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595. He did not attend U.C. Berkeley.

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.