By William W. Abbott
City of San Diego v. Board of Trustees of the California State University, S199557, Supreme Court of California, 2015 Cal. LEXIS 5291, August 3, 2015
The California Supreme Court cleared the air over one of its earlier CEQA decisions concerning the responsibility of CSU to consider and mitigate for offsite impacts. In 2006, the Court determined that CSU Monterey was not precluded from mitigating for offsite impacts occurring in the City of Marina. City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341. In the Marina decision, the court stated “[A] state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” The University system is directed by a Board of Trustees, who, in reliance upon the above quoted language in Marina, determined that the University was not authorized to engage in offsite mitigation absent a specific legislative appropriation.
At roughly the same time as the Marina decision, CSU San Diego was in the midst of planning for a significant expansion to accommodate an additional 10,000 students, part of the State University’s statewide efforts to add 107,000 more students. In 2005, the Board of Trustees certified and EIR for a significant increase in on-campus facilities. The EIR acknowledged that the proposed project would generate significant offsite traffic impacts. At the time of project approval, the Trustees determined that expenditure of funds for offsite mitigation would be an illegal use of public funds. The City of San Diego challenged the decision, and following the Marina decision, the trial court issued a writ directing that the EIR certification be set aside. In 2007, the Trustees recirculated a revised EIR. The proposed project now included a 348 unit townhome/condominium project; 612,000 square feet of facilities devoted to academic, research and medical use; 552,000 square foot parking structure; hotel; campus conference center; housing for 3,400 students (1.4 million square feet); and renovation and expansion of the student center. The 2007 DEIR documented the offsite circulation impacts. The EIR also calculated fair share contributions for the University, but in relying upon the Marina decision, noted that payments for offsite mitigation were subject to appropriation by the Legislature. If that appropriation was not assured, the DEIR took the position that the offsite circulation impacts would be significant and unavoidable. Before certifying the EIR in 2007, the University submitted an appropriation request to the Department of Finance for San Diego and other campuses. The appropriation request was not included in the Governor’s budget. (Similar requests were made the following two years and in both cases were similarly not included in the budget.) The City of San Diego, SANDAG and the Metropolitan Transit System opposed the University’s decision to categorically exclude offsite mitigation absent legislative appropriation and following EIR certification and project approval, filed suit. The trial court rejected the legal challenges and discharged the earlier writ. The appellate court reversed in part, and the Supreme Court took up the issue of the legal significance of legislative appropriation on the duty to mitigate and its earlier language in Marina.
The Supreme Court first resolved that the prior language in Marina was dictum, that is a statement of principle not necessary to the resolution of the earlier decision. In any event, looking at the language most favorably to the University, there was nothing in the Marina opinion to support the interpretation that legislative funding was a condition precedent to offsite mitigation. No other state agencies apparently took a similar position, and there was nothing in the Education Code which would support a special rule for the state university system. The Supreme Court noted the consequences of the University’s position: if the University was excluded from mitigation, impacted communities would not be able to shift the funding shortfall to other parties due to requirements of nexus under the Mitigation Fee Act. After concluding that the University must re-analyze strategies for mitigating impacts including how it discharged its core educational function, the Court concluded by underscoring the University’s duty to include all feasible mitigation.
It makes me wonder. Are CliffsNotes available for EIRs?
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.