By William W. Abbott

California State University East Bay undertook a dual purpose EIR for its campus master plan and two construction projects, the latter consisting of a housing complex and a parking structure. The EIR included alternatives at both the master plan and construction project level. The City of Hayward and public interest groups filed suit challenging the sufficiency of the EIR. The trial court found the EIR to be deficient and issued an order granting the petition for writ. The University subsequently appealed.

With the exception of one issue, the appellate court reversed the trial court, generally upholding the sufficiency of the EIR. The appellate decision provides helpful guidance in the use of a programmatic EIR (for the master plan) and recognizes that despite the somewhat predictable claim of the project opponents that more detail should have been included in the programmatic document, that those details were properly left for the next CEQA tier. The appellate court found that substantial evidence supported the conclusion that the construction of an additional fire station would have less than significant impacts as the anticipated construction of a station in an urban setting was not anticipated to cause impact. Notably, the appellate court concluded that the lead agency was not required to mitigate for the socio-economic impacts such as station staffing. With respect to traffic impacts, the master plan EIR was a programmatic EIR, and was not required to analyze neighborhood street impacts as that would be analyzed in conjunction with the next CEQA review and consideration of specific projects which would be the basis for more detailed evaluation. A mitigation requirement for a Transportation Demand Management program did not result in deferred mitigation, as the mitigation measure included a required performance standard. However, there was a lack of substantial evidence to support the EIR’s conclusion that the impacts to area parks would be less than significant and on that basis the matter was remanded back for additional analysis as part of a revised EIR. City of Hayward v. Trustees of the California State University (June 28, 2012, A131412) ___Cal.App.4th ___.

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.

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.