Landvalue 77, LLC v. Bd. of Trs. of State Univ.

• Decision Date: 23 February 2011
• Docket Number: No. F058451.,F058451.
• Citation: 193 Cal.App.4th 675,122 Cal.Rptr.3d 37,2011 Daily Journal D.A.R. 3937,11 Cal. Daily Op. Serv. 3345
• Court: California Court of Appeals Court of Appeals
• Parties: LANDVALUE 77, LLC et al., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF the CALIFORNIA STATE UNIVERSITY et al., Defendants and Respondents; Kashian Enterprises, L.P., Real Party in Interest and Respondent.

193 Cal.App.4th 675

122 Cal.Rptr.3d 37

11 Cal. Daily Op. Serv. 3345

2011 Daily Journal D.A.R. 3937

LANDVALUE 77, LLC et al., Plaintiffs and Appellants,

v. BOARD OF TRUSTEES OF the CALIFORNIA STATE UNIVERSITY et al., Defendants and Respondents;Kashian Enterprises, L.P., Real Party in Interest and Respondent.

No. F058451.

Court of Appeal, Fifth District, California.

Feb. 23, 2011.

Certified for Partial Publication.^*

Doyle & Schallert, David Douglas Doyle; Stoel Rives, Sacramento, Melissa A. Foster and Lee N. Smith for Plaintiffs and Appellants.

Crowell & Moring, San Francisco, Ethan P. Schulman, Margaret Dollbaum, Gregory D. Call, and Nathanial J. Wood for Defendants and Respondents.

McDonough Holland & Allen; Best, Best & Krieger, Kimberly E. Hood, and Harriet A. Steiner, Sacramento, for Real Parties in Interest and Respondents.

OPINION

DAWSON, J.

This appeal concerns a mixed-use development project involving 45 acres of land located on the Fresno campus of the California State University. The development is known as the Campus Pointe project and is being completed by a private developer that subleased the land from an auxiliary organization of the university. The development plans include apartments for students, faculty, employees and seniors, offices and retail stores, a hotel, and a 14–screen movie theater.

Appellants sued, challenging the approval of the project. They alleged a university trustee violated a conflict of interest statute, and the project's environmental impact report (EIR) failed to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).

The trial court found a conflict of interest prohibited by Government Code section 1090¹ and voided a theater sub-sublease between the developer and a trustee of the university. The trial court also concluded the final EIR inadequately analyzed environmental impacts involving (1) the water supply, (2) traffic and parking, and (3) air quality.

Appellants appealed, claiming the remedies imposed by the trial court were inadequate.Appellants contend the trial court should have remedied the conflict of interest by voiding the approval of the entire project, not just the theater sub-sublease. Appellants contend the provisions of CEQA required the trial court to (1) issue the peremptory writ required by its own judgment and CEQA, (2) issue an injunction to prevent the further construction of the project, and (3) mandate specific actions, such as completion of a traffic study, to address the shortcomings of the EIR identified in the trial court's written statement of decision.

We conclude that (1) the trial court was required by Public Resources Code section 21168.9 to issue a writ of mandate and (2) the judgment and writ of mandate should direct that the certification of the final EIR and the approvals of the project be set aside. The trial court did not, however, abuse its discretion in refusing to enjoin construction.

We also conclude that the violation of the conflict of interest prohibition in section 1090 did not require a broader remedy than imposed by the trial court.

The judgment is affirmed in part and reversed in part. The trial court shall modify the judgment and issue a writ of mandate in accordance with this opinion.

FACTS^**

PROCEEDINGS^**

DISCUSSION

I. Conflicts of Interest and Remedies^**II. CEQA and Returns of WritsA. Trial Court's Decision and Judgment

The statement of decision included the trial court's analysis and determinations that certain CEQA violations had occurred. It discussed the remedies for those violations as follows:

“The Court has determined that there was inadequate traffic analysis, and in particular, failure to respond to comments made by the City of Fresno concerning the project's impact on traffic caused by the elimination of overflow parking for the Save Mart Center. The Court has also determined that there was a failure to adequately analyze the project's water issues. The Court has also determined that there was a failure to discuss the applicability of ISR 9510 [San Joaquin Valley Unified Air Pollution Control District's ‘indirect source rule’].

“Upon entry of the judgment and issuance of the writ, Respondents should take action with respect to the comments concerning traffic, analyze water issues, and discuss the applicability of the [indirect source rule] in accordance with the court's opinion, and to revise the findings and recirculate for comment as necessary. The severance and consideration of these noncomplying aspects of the project should not prejudice complete and full compliance with CEQA. The court does not direct Respondents to exercise their discretion in any particular way. [Citation.]”

On the same day it filed its statement of decision, the trial court also filed a “Judgment Granting Peremptory Writ of Mandate.” The judgment included the following orders:

“2. A peremptory writ of mandate directing Respondent to set aside, in part, the Resolution of the Board of Trustees Certifying the final Environmental Impact Report and Approval of the Campus Master Plan Revision and Amendment to the 2006–07 Non–State Capital Outlay Program for Campus Pointe at California State University, Fresno (RCPBG 05 07–10), and to reconsider its opinion and judgment, in light of this Court's accompanying combined statement of decision, and to take such further action as is specially enjoined upon them by law, but the judgment does not limit or control in any way the discretion legally vested in the Respondents, as follows:

“(a) Respondents are to respond to the City of Fresno's comments concerning the project's impact on traffic caused by the elimination of overflow parking for the Save Mart Center.

“(b) Respondents are to revise its comments in its water supply analysis.

“(c) Respondents are to discuss the applicability of the San Joaquin Valley Unified [A]ir Pollution Control District rule 9510 to the project. [¶] ... [¶]

“4. Respondent shall file a return to this peremptory writ of mandate within 120 days of service of the peremptory writ of mandate. The Court reserves jurisdiction to determine, by return to the peremptory writ of mandate, whether Respondent has taken those actions necessary to comply with the Court's order on petition for writ of mandate.”

Despite the judgment's mention of a peremptory writ of mandate and the statement of decision's reference to the “issuance of the writ,” an actual writ of mandate was not filed, issued, or served upon respondents before the notice of appeal was filed in early September 2009. Because an appeal was filed, respondents have not taken action to comply with the terms of the judgment. Their appellate brief acknowledges this fact: “It is now up to Respondents to complete that additional environmental review, analyze the results, prepare an appropriate environmental document, and circulate as necessary under CEQA. What that environmental document will be and what conclusions it will reach have not yet been determined.”

B. Necessity of a Writ of Mandate

Appellants contend the trial court erred in implementing its remedies for the CEQA violations because it failed to issue the peremptory writ required by its own judgment and CEQA. Respondents argue that the judgment effectively operates as a writ of mandate and the mere fact it was not denominated as such is not prejudicial error.

Subdivision (a) of Public Resources Code section 21168.9 addresses what a court should include in its order when it finds that a public agency has not complied with CEQA. Subdivision (b) of Public Resources Code section 21168.9 provides in part:

“Any order pursuant to subdivision (a) shall include only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division. The order shall be made by the issuance of a peremptory writ of mandate specifying what action by the public agency is necessary to comply with this division. ... The trial court shall retain jurisdiction over the public agency's proceedings by way of a return to the peremptory writ until the court has determined that the public agency has complied with this division.”

This provision is clear in its use of mandatory language with respect to the issuance of a peremptory writ of mandate and the use of a return.

In this case the trial court did not comply with the mandatory language requiring the issuance of a peremptory writ of mandate. On remand, we will direct the trial court to comply with subdivision (b) of Public Resources Code section 21168.9 and actually issue a peremptory writ of mandate.

The disputes regarding what should be set forth in the writ of mandate are addressed in part II.D, post.

C. Severance and Overturning the Entire Project Approval

Appellants contend that the trial court erred by severing the identified CEQA defects and instead should have overturned the entire project approval. Respondents contend that it would violate Public Resources Code section 21168.9, subdivision (b) for this court to void the entire Campus Pointe project even though the trial court found only three limited defects requiring additional environmental analysis.

The trial court did not here sever a “portion or specific project activity or activities” from the remainder of the project. (Pub. Resources Code, § 21168.9, subd. (b).) It did not, for example, allow the development of one parcel to proceed and stop the development of another parcel. (See Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1181, 30 Cal.Rptr.3d 738 [trial court properly severed gas station from the rest of the Wal–Mart Supercenter].) For that reason, appellants' assertion that the trial court erred in its application of the concept of severance set forth in Public Resources Code section 21168.9, subdivision (b) must be rejected.

Appellants' misunderstanding of severance, however, does not necessarily undermine the merit...