City of San Diego v. Bd. of Trs. of The California State Univ., D057446.

• Citation: 275 Ed. Law Rep. 299,135 Cal.Rptr.3d 495,2011 Daily Journal D.A.R. 17803,11 Cal. Daily Op. Serv. 14941
• Decision Date: 13 December 2011
• Docket Number: No. D057446.,D057446.
• Court: California Court of Appeals
• Parties: CITY OF SAN DIEGO et al., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF the CALIFORNIA STATE UNIVERSITY, Defendant and Respondent.

11 Cal. Daily Op. Serv. 14,941

135 Cal.Rptr.3d 495

2011 Daily Journal D.A.R. 17,803

275 Ed. Law Rep. 299

CITY OF SAN DIEGO et al., Plaintiffs and Appellants,

v.BOARD OF TRUSTEES OF the CALIFORNIA STATE UNIVERSITY, Defendant and Respondent.

No. D057446.

Court of Appeal, Fourth District, Division 1, California.

Dec. 13, 2011.

Background: City, local association of governments, and metropolitan transit system (MTS) filed petitions for writ of mandate challenging state university system's certification of final environmental impact report (EIR) and approval of campus expansion project. The Superior Court, San Diego County, Nos. GIC855643, GIC855701, 37-2007-00083692-CU-WM-CTL, 37-2007-00083773-CU-MC-CTL, 37-2007-00083768-CU-TT-CTL, Thomas P. Nugent, J., denied the petitions. City, association, and MTS appealed.

Holdings: The Court of Appeal, McDonald, J., held that:

(1) EIR was required to investigate funding sources for mitigation other than legislative appropriation;

(2) EIR did not adequately discuss on-campus mitigation; but

(3) EIR's methodology for calculating average daily vehicle trips was reasonable; but

(4) EIR's traffic mitigation measure of consulting with other agencies improperly deferred mitigation;

(5) EIR did not adequately address impacts on public transit; and

(6) evidence did not support finding that project would not have significant effect on transit system.

Affirmed in part, reversed in part, and remanded with directions. Jan I. Goldsmith, City Attorney, Donald R. Worley, Assistant City Attorney, and Christine M. Leone, Chief Deputy City Attorney, for Plaintiffs and Appellants the City of San Diego and Redevelopment Agency of the City of San Diego.

John F. Kirk, San Diego; the Sohagi Law Group, Margaret M. Sohagi, Philip A. Seymour, Los Angeles, and Nicole H. Gordon for Plaintiffs and Appellants San Diego Association of Governments and San Diego Metropolitan Transit System.

Ronald W. Beals, West Sacramento, Thomas C. Fellenz, Sacramento, David H. McCray, Brandon S. Walker and Elizabeth R. Strayer for State of California, Department of Transportation as Amicus Curiae on behalf of Plaintiffs and Appellants.Remy, Thomas, Moose & Manley, Sacramento, Sabrina V. Teller and Laura M. Harris for League of California Cities and California State Association of Counties as Amicus Curiae on behalf of Plaintiffs and Appellants.Gatzke, Dillon & Ballance, Carlsbad, Mark J. Dillon, Michael S. Haberkorn and Danielle K. Morone for Defendant and Respondent.McDONALD, J.

In 2005, the Board of Trustees of the California State University (CSU) certified an environmental impact report (EIR) and approved a project for the expansion of San Diego State University (SDSU). The project included the construction of new buildings and an increase in SDSU's student enrollment from 25,000 full-time equivalent students (FTES) to 35,000 FTES by the 2024/2025 academic year. During the pendency of litigation challenging the 2005 EIR certification and project approval, the California Supreme Court issued its opinion in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 46 Cal.Rptr.3d 355, 138 P.3d 692 ( Marina ), which addressed certain issues involved in the 2005 SDSU EIR litigation. In response to Marina, the trial court in 2006 entered judgment against CSU and issued a writ of mandate directing it to set aside its certification of the 2005 EIR and approval of the SDSU expansion project. The court retained jurisdiction of the matter until it determined CSU had complied with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) ¹ (CEQA) and the views expressed in Marina.

In 2007, CSU revised its master plan for expansion of SDSU (the Project) and released a draft EIR (DEIR) for the Project. After receiving comments from the general public and governmental agencies, CSU prepared a final EIR (FEIR), responding to those comments and revising the DEIR. In November 2007, CSU certified the FEIR and approved the Project, finding that because it might not obtain “fair-share” off-site mitigation funding from the Legislature and Governor, there are no feasible mitigation measures to reduce the Project's significant off-site traffic impacts to a less than significant level. Based in part on its finding that those significant off-site traffic impacts were unavoidable, CSU adopted a statement of overriding considerations, concluding the Project's benefits outweighed its unavoidable significant environmental effects, and then approved the Project.

The City of San Diego and the Redevelopment Agency of the City of San Diego (together City), San Diego Association of Governments (SANDAG), and San Diego Metropolitan Transit System (MTS) filed petitions for writs of mandate challenging CSU's certification of the FEIR and approval of the Project. After consolidating the cases and hearing arguments of counsel, the trial court denied the petitions and discharged the 2006 writ, finding CSU had complied with Marina. It then entered judgment for CSU.

On appeal, City, SANDAG, and MTS contend the trial court erred by: (1) concluding CSU complied with CEQA and Marina by finding “fair-share” payments for mitigation of significant off-site environmental impacts were infeasible because it could not guarantee the Legislature and Governor would approve the funding, and that the FEIR was not required to address potential alternative means of paying CSU's “fair-share” of those off-site mitigation costs; (2) concluding they could not raise those issues in the trial court because they did not raise them during the administrative proceedings (i.e., they failed to exhaust their administrative remedies); (3) denying their request for judicial notice of certain documents pertaining to the issue of whether CSU complied with CEQA and Marina; (4) concluding the FEIR did not err in calculating the increased vehicle traffic caused by the Project's increased student enrollment; (5) concluding CSU did not improperly defer adoption of mitigation measures to reduce vehicle traffic; and (6) concluding the FEIR adequately addressed the Project's potential impacts on transit and that there is substantial evidence to support CSU's finding the Project will not cause any significant effect on public transit (e.g., trolley and bus facilities and service). For the reasons discussed below, we conclude the trial court erred in denying the petitions and the request for judicial notice and in discharging the 2006 writ.

FACTUAL AND PROCEDURAL BACKGROUND

The SDSU campus is located in The City of San Diego along the southern rim of Mission Valley. The campus consists of about 280 acres with the following general boundaries: Montezuma Road on the south, East Campus Drive on the east, 55th Street and Remington Road on the west, and Adobe Falls Road (north of Interstate 8) on the north. In 2005, CSU certified an EIR and approved a project for the expansion of SDSU. During the pendency of litigation challenging that 2005 EIR certification and project approval, the California Supreme Court issued its opinion in Marina. In response to Marina, in 2006 the trial court entered judgment against CSU, issued a writ of mandate directing it to set aside its certification of the 2005 EIR and approval of the project, and retained jurisdiction of the matter until it determined CSU had complied with CEQA and Marina.

In February 2007, toward its continuing goal of expanding SDSU's enrollment, CSU prepared a new notice of preparation and initial study (NOP) and circulated it for public comment. In June, after receiving public comments on the NOP, CSU prepared the DEIR. As described in the DEIR, the Project is CSU's master plan for expansion of SDSU through the 2024/2025 academic year by increasing student enrollment from 25,000 FTES to 35,000 FTES (equal to an actual increase of 11,385 students) and developing six components: (1) additional on-campus student housing (i.e., an additional 2,976 beds); (2) between 172 and 348 condominium and/or townhouse units on the 33–acre Adobe Falls site for SDSU faculty and staff housing; (3) a 120–room hotel on its Alvarado Road site; (4) 612,000 square feet of new building space on its Alvarado Road site for academic, research, and/or medical use and a 552,000 square foot parking structure; (5) renovation and expansion of the student union building; and (6) a 70,000 square foot campus conference center for meetings, conferences, office space, and food and retail services. The DEIR states the proposed increase in student enrollment will require the hiring of 691 additional faculty members and 591 additional staff members. The Project will result in a total of 12,667 additional students, faculty, and staff on the SDSU campus by the 2024/2025 academic year.² The DEIR discussed the Project's potential significant environmental impacts and mitigation measures and alternatives that would reduce or avoid those impacts.

CSU circulated the DEIR for public comment from June 12, 2007, through July 27, 2007. CSU held multiple community meetings to present the DEIR and the Project, and receive comments. CSU received about 87 comment letters on the DEIR from residents who live in neighborhoods that would be affected by the Project; other members of the public; and federal, state, and local governmental agencies, including City and SANDAG. CSU then prepared the FEIR, which attached the comment letters, responded to them, and revised the DEIR.

On November 13 and 14, 2007, CSU held a public meeting on the FEIR. Representatives of City, SANDAG, MTS, and the State of California Department of Transportation (Caltrans) and members of the public expressed concerns regarding the FEIR and the Project. CSU then adopted findings of fact (Findings) and the mitigation measures set forth in the mitigation monitoring and reporting program (MMRP). In the Findings, CSU found the FEIR identified potentially significant...