By William W. Abbott
The Fifth Appellate District showed pragmatism and practicality the exit door in a recent CEQA decision involving an approval by the Board of Trustees of California State University Fresno. In Landvalue 77, LLC v. Board of Trustees of California State University 2011 Cal.App. Unpub. LEXIS 1312, the disputed project involved land owned by the University. The University in turn leased the property to an associated University foundation, who then ground leased the property to a developer for a mixed use project. In the ensuing legal challenge to the project approval by entities owning and managing a nearby commercial center, the trial court and appellate court addressed both conflict of interest issues (the effect of a trustee to hold an economic interest in a cinema sublease) as well as CEQA compliance. Only a portion of the appellate decision is published, that dealing with the appropriate actions to be taken by the trial court once it finds a violation of CEQA.
The first of the published issues dealt with the obligation of the trial court to issue a writ following the entry of judgment. In the facts of this case, the trial court entered a judgment in favor of the project opponents, but did not issue a writ. On this procedural issue, the appellate court held that Public Resources Code section 21168.9 makes the issuance of the writ mandatory.
The appellate court’s most significant holding has to do with what CEQA practitioners refer to as severance. That is, if the trial court finds that an element of the CEQA document must be redone, can the trial court sever one portion of the project from the portion tainted by the invalid CEQA analysis and allow the untainted element to proceed? While many practitioners believe that such an approach is allowed for by the California Supreme Court and appellate courts, as well as the CEQA statute and Guidelines, the Fifth Appellate District answered the question in the negative. “…the concept of completeness is not compatible with partial certification. In short, an EIR is either complete or its not.” It follows, then in the opinion of the Fifth Appellate District, that the approval in its entirety must be set aside.
If this decision remains undisturbed, this issue will likely have to be resolved by the California Supreme Court.
William 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.
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.