Cal. Oak Found. v. the Regents of The Univ. of Cal.

• Decision Date: 15 December 2010
• Docket Number: No. A122511.,A122511.
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA OAK FOUNDATION, et al., Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, et al., Defendants and Respondents.

188 Cal.App.4th 227 115 Cal.Rptr.3d 631 260 Ed. Law Rep. 341 10 Cal. Daily Op. Serv. 11,709 2010 Daily Journal D.A.R. 14,143 CALIFORNIA OAK FOUNDATION, et al., Plaintiffs and Appellants, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, et al., Defendants and Respondents. No. A122511. Court of Appeal, First District, Division 3, California. Sept. 3, 2010. As Modified Oct. 1, 2010. Review Denied Dec. 15, 2010.

**639 Law Offices of Stephan C. Volker, Stephan C. Volker, Joshua A.H. Harris, Oakland, for Plaintiffs and Appellants.

Reed Smith LLP, Paul D. Fogel, Dennis Peter Maio, San Francisco, Office of the General Counsel, University of California, Charles F. Robinson, Eric K. Behrens, Oakland, Kelly L. Drumm, San Francisco, Sanger & Olson, John M. Sanger, Charles R. Olson, San Francisco, Belzer, Hulchiy & Murray, Nicholas P. Hulchiy, Lafayette, Steven Barry Piser, Oakland, for Defendants and Respondents.

JENKINS, J.

*240 Appellants challenge the judgment entered after the trial court denied their petition for writ of mandate (petition).¹ In that petition, appellants sought to compel the Regents of the University of California (Regents) to rescind certification of an environmental impact report (EIR) prepared for seven related projects at the University of California at Berkeley (University), and its approval of the proposed Student Athlete High Performance Center (Athlete Center), the first phase of one such project.² On appeal, appellants contend the Regents violated two statutes in certifying **640 the EIR and approving the Athlete Center: the Alquist-Priolo Earthquake Fault Zoning Act (Alquist-Priolo Act), Public Resources Code, section 2621 et seq., and the California Environmental Quality Act (CEQA), Public Resources Code, section 21000 et seq.³

For reasons soon explained, we conclude the Regents complied with both statutes in certifying the EIR and approving the Athlete Center project. Specifically, we conclude that, while the Athlete Center is subject to the Alquist-Priolo Act based on its proposed location within an earthquake fault zone, the Regents could properly find the Athlete Center will not be an "addition" or "alteration" to the University's California Memorial Stadium (Stadium), as defined by the statute, and thus is not subject to the statute's value restriction on certain projects coming within those definitions. We further conclude the Regents acted in accordance with CEQA in certifying the EIR because it contains sufficient information regarding the projects' *241 likely environmental impacts, as well as feasible alternatives to or mitigation measures for those projects to avoid or minimize the identified impacts. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants brought the underlying action against the Regents under the Alquist-Priolo Act and CEQA, challenging the Regents' approval of the Athlete Center project, the first phase of the California Memorial Stadium Seismic Corrections and Program Improvements Project (Stadium project), and certification of the EIR for the University's Southeast Campus Integrated Projects (Integrated Projects). The following facts are relevant to this challenge.

I. The Integrated Projects.

The Integrated Projects include each of the following seven projects proposed for the southeast quadrant of the University's campus between the years 2006 and 2012: (1) the Stadium project, involving both new construction and seismic corrections and renovations; (2) the Maxwell Family Field Parking Structure and Sports Field, involving a new underground parking facility for up to 911 vehicles with a roof level sports field; (3) the Law and Business Connection Building, involving construction of a new 180,000 square foot building linking collaborative law and business school programs; (4) the Southeast Campus and Piedmont Avenue Landscape Improvements, involving landscape renovations to enhance views of the Stadium and to improve and enhance opportunities for interaction of people, bicycles and vehicles in the southeast campus; (5) the Hass **641 School of Business Program Improvements and (6) the Boalt School of Law Program Improvements, both of which involve interior building changes designed to improve use of space and to improve access and transparency between the new Law and Business Connection Building and existing buildings; and (7) the Renovation and Restoration of 2222 to 2240 Piedmont Avenue, involving renovation and restoration of five residential houses to enhance appreciation for the historic character of those structures.

The Stadium project, consisting of three phases, is the first of the Integrated Projects scheduled to proceed. Phase I involves construction of the Athlete Center, a multi-level, 158,000 square foot structure immediately to the west of the Stadium. The Athlete Center is designed to accommodate 13 varsity sports in addition to men's football, and to provide training and program space for about 450 athletes. The Athlete Center is intended to not only address long-standing deficiencies in the quantity and quality of the University's athlete training and development facilities, but also to provide *242 space for occupants currently housed in the Stadium. By moving these occupants out of the Stadium in Phase I, the University would be able to proceed with Phases II and III, which involve renovation and seismic retrofitting of the Stadium.

The Stadium, built in 1923, is one of the University's most treasured assets, and has been nominated to the National Register of Historic Places. The Stadium sits astride the Hayward fault, at the point where the Hayward fault intersects with the Louderback fault. For many years, the University and various outside consultants have warned about earthquake-related public safety risks stemming from the Stadium's location, and have recommended various seismic upgrades, as the Stadium presents a seismic risk for all users, including daily and game-day occupants. In 1997, the Stadium was rated seismically "poor" under the University's seismic evaluation guidelines.

To address these concerns, Phase II involves seismic upgrades to the west side of the Stadium, in addition to construction of a new press box and installation of permanent lighting above the Stadium's west rim. Phase III involves seismic upgrades to the east side of the Stadium and construction of new seating above the Stadium's east rim.

According to the University's plan, Phase I was scheduled to begin in January 2007 and to be completed in September 2009. Planning and construction for Phases II and III would then begin once the Athlete Center was completed and occupied.

Consistent with this schedule, only Phase I was presented to the Regents for approval in conjunction with certification of the EIR. Phases II and III, along with the remaining Integrated Projects, were to be presented to the Regents for budget and design approval at a later date, at which time the Regents would also decide whether additional CEQA environmental review was necessary.

II. The EIR Process and Certification.

Collectively, the Integrated Projects are part of a larger plan for developing the University's campus in the near future. Prior to 2005, the Regents initiated the UC Berkeley 2020 Long Range Development Plan. In January 2005, the Regents certified the UC Berkeley 2020 Long Range Development Plan EIR (2020 LRDP EIR). The 2020 LRDP EIR, according to the Regents, "describes the scope and nature of development proposed to meet the goals of the University through academic year 2020-2021, as well **642 as land use principles and policies to guide the location, scale and design of individual capital projects."

*243 The Integrated Projects are designed to provide about 20 percent of the new gross square footage and 24 percent of projected new parking anticipated by the 2020 LRDP EIR. In compliance with CEQA, the University determined the Integrated Projects could have significant impacts on the environment and that an EIR, independent from the 2020 LRDP EIR, was therefore necessary. Thus, the EIR at the heart of these proceedings was prepared.

According to the University, the EIR "provides a project-level analysis of the [Integrated Projects] and is tiered from the 2020 LRDP EIR." ⁴ The EIR's preparation began with a Notice of Preparation and Initial Study of the EIR, which was circulated on November 14, 2005. A 30-day review period for the Initial Study was then held from November 15, 2005 to December 14, 2005, during which time the University received written and verbal comments from the public that were taken into consideration when the DEIR was prepared.

The DEIR analyzed potential significant environmental impacts of the Integrated Projects with respect to the following issue areas: aesthetics; cultural resources; geology, seismicity and soils; hydrology and water quality; land use; noise; public services; emergency access; transportation and traffic; utilities; and wastewater, storm water and steam/chilled water construction.⁵ The DEIR also proposed various mitigation measures and project alternatives to address the identified impacts. The DEIR ultimately concluded that, by implementing the proposed mitigation measures, most of the projects' significant impacts would be reduced to less than significant levels.

The University circulated the DEIR for public review from May 8, 2006 until July 7, 2006, longer than the 45 days required by section 15105 of the Guidelines. On June 6, 2006, the University held a public hearing, at which 23 people provided comments on the DEIR. In addition, the University received written comments from eight public agencies and 55 organizations and individuals, as well as two petitions with a combined total of over 1,000 signatures. Concerns raised by these comments and petitions related primarily to the following topics: seismic and structural safety; impacts on cultural resources; and impacts of expanded use of a...