Mount Sutro Defense Committee Regents of University of California

• Decision Date: 24 January 1978
• Citation: 143 Cal.Rptr. 365,77 Cal.App.3d 20
• Court: California Court of Appeals Court of Appeals
• Parties: MOUNT SUTRO DEFENSE COMMITTEE et al., Plaintiffs, Appellants, and Respondents, v. REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants, Respondents, and Appellants. Civ. 39322.

Page 365

143 Cal.Rptr. 365

77 Cal.App.3d 20

MOUNT SUTRO DEFENSE COMMITTEE et al., Plaintiffs, Appellants, and Respondents, v. REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants, Respondents, and Appellants.

Civ. 39322.

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

Jan. 24, 1978.

Hearing Denied April 13, 1978.

David E. Pesonen, Garry, Dreyfus, McTernan, Brotsky, Herndon & Pesonen, Inc., San Francisco, for plaintiffs, appellants and respondents Mount Sutro Defense Committee et al.

Donald L. Reidhaar, David A. Dorinson, Gary Morrison, Berkeley, Stuart R. Pollak, Robert E. Gooding, Jr., Fred H. Altshuler, Steven L. Mayer, Howard, Prim, Rice, Nemerovski, Canady & Pollak, A Professional Corp., San Francisco, for defendants, respondents and appellants Regents of the University of Cal. et al.

RACANELLI, Presiding Justice.

Defendants, appellants and respondents Regents of the University of California et al. (including certain named University officials individually and in their representative capacities) ^* appeal from the judgment below granting injunctive and declaratory relief in favor of plaintiffs, respondents and appellants Mount Sutro Defense Committee et al. (including certain named individuals and nonprofit associations and corporations). ^** Mount Sutro cross-appeals from a portion of the same judgment denying its application for attorney fees, and also appeals (denominated related appeal) from certain orders subsequently made vacating the injunction provisions of said judgment.

Procedural History

Mount Sutro brought the underlying action against The University under the provisions of the California Environmental Quality Act (CEQA), Public Resources Code section 21000 et seq., and the State EIR Guidelines, 14 California Administrative Code section 15000 et seq., ¹ seeking injunctive and declaratory relief (and attorney fees ²), alleging that University's approval and certification of the final Environmental Impact Reports (EIR) concerning proposed capital improvement projects to expand the School of Dentistry and modernize the existing Moffitt Hospital situated on its San Francisco campus constituted an abuse of discretion within the meaning of section 21168.5 ³ in that the Regents had not proceeded in the manner required by law in approving such projects and in determining their environmental impact.

During trial the court considered extensive testimony and voluminous documentary exhibits concerning the planning and review process and procedures employed by The University in developing and finalizing its capital improvement projects and requests for funding by the Legislature. The adequacy of the final EIRs prepared by The University in relation to each project was not challenged and is not an issue on appeal. The court rendered an intended decision in favor of Mount Sutro and thereafter made extensive findings of fact and conclusions of law, the relevant portions of which are referred to in our discussion. Based upon such findings, the court entered its written judgment on December 16, 1975, (a) declaring that the written determinations required under section 21108 ⁴ as made by The University president and Regents concerning each project failed to comply with the applicable provisions of CEQA and constituted an abuse of discretion (1) in failing to include the final EIR as a part of the Project Planning Guide (PPG) and as part of the existing review and budgetary process for each project, and (2) in the nonavailability of said EIRs to the Legislature at the time of its review of Budget Acts appropriating necessary funds for working drawings and construction; (b) enjoining The University from "taking any action in furtherance of the construction" of both projects. ⁵ The injunctive provisions were to remain effective until The University satisfactorily complied with the provisions of CEQA by undertaking an extensive re-review process ⁶ and, upon reconsideration and reapproval by the Regents, transmittal of both PPGs and EIRs "to the Speaker of the Assembly and the President Pro Tem of the Senate of the California Legislature for whatever action the Legislature deems appropriate." The judgment further ordered that the certifications by the Regents be set aside and the notices of determination filed pursuant to section 21108 be withdrawn; Mount Sutro's request for attorney fees was denied. The University appealed this judgment and Mount Sutro cross-appealed from the portion thereof denying attorney fees.

Upon completion of the re-review process and reapproval by the Regents of the hospital project (Jan. 23, 1976) and dentistry project (Mar. 19, 1976), University moved to vacate the injunctive provisions of the judgment. Based upon uncontradicted and substantial evidence submitted by The University, the court determined that it had satisfactorily performed the mandated re-review process and rendered its order vacating the injunction as to the hospital project (Mar. 16, 1976) and subsequently the dentistry project (Apr. 9, 1976).

Findings of fact and conclusions of law in support of said order were made and filed (Apr. 28, 1976) and a decree vacating said injunction entered on the same day. Mount Sutro has appealed from the orders ⁷ of March 16, 1976, and April 9, 1976, vacating the injunctions. ⁸

Mootness

Preliminarily, we address the question of mootness of the appeal by The University in light of the decree vacating the injunctions. ⁹ Both sides agree that the issues presented should be decided on the merits in view of the broad public interest to be served by resolution of such issues. We are similarly persuaded. "It is now established law that where, as in the cases at bench, issues on appeal affect the general public interest and the future rights of the parties, and there is reasonable probability that the same questions will again be litigated and appealed, an appellate court may, although the appeal be subject to dismissal, nevertheless adjudicate the issues involved. (Citations.)" (People v. West Coast Shows, Inc. (1970) 10 Cal.App.3d 462, 468, 89 Cal.Rptr. 290, 295; see also Johnson v. Hamilton (1975) 15 Cal.3d 461, 465, 125 Cal.Rptr. 129, 541 P.2d 881; 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 470, pp. 4426-4427.)

The novel questions of statutory interpretation presented on appeal fall within the public interest exception to the mootness doctrine and are ripe for adjudication. Moreover, Mount Sutro's cross-appeal on its face presents a viable issue for determination. Thus, we conclude it is entirely appropriate to adjudicate such issues.

Statement of Facts

In order to fully understand the factual background against which the questions on appeal are presented, it is necessary to explain in some detail the various processes involved in the planning and funding of The University's capital improvement projects as interfaced with environmental requirements and considerations. In view of Mount Sutro's adoption of the statement of facts as set forth in The University's opening brief, we substantially adopt such statement of facts herein.

I. The Planning and Budgetary Process

To secure necessary funding for capital improvement projects, The University as a state agency undertakes a complex and time-consuming process of planning and review directed towards eventual approval (or disapproval) by the Regents for authority to request legislative appropriations.

Long-range physical planning for each University campus is conceptualized through the preparation of a Long Range Development Plan (LRDP). The San Francisco campus LRDP in effect at all relevant times herein was originally adopted by the Regents in 1964 and amended periodically thereafter. In 1969, a multi-phase planning process to revise the LRDP was begun. In accordance with University policy, an EIR was prepared in conjunction with the proposed revision (the first such revision since the enactment of CEQA). Revision of the LRDP was still in the preparation stage as of September 1974.

The LRDP, used for planning purposes only, is intended to ensure that consideration is given to long-term trends and the relation of particular projects to the campus as a whole; inclusion of a particular proposed structure in the LRDP does not constitute a commitment by The University to proceed with that project. Physical planning for particular structures is preceded by programmatic planning i. e., study and determination of academic needs and goals. Programmatic objectives are translated to specific proposed projects in a document entitled Project Planning Guide (PPG). The PPG is a document utilized at the staff level only to assess programmatic and financial feasibility of a proposed major capital improvement project. It establishes the scope and purpose of the project and is intended to provide a foundation for subsequent planning. The PPG is often revised to reflect planning changes in the scope of the proposed project. It must be included in budget requests to the State Department of Finance but is not submitted to the Regents and its approval by the campus Chancellor does not constitute approval of the project or authorization to proceed beyond preliminary planning of the project.

The next stage of planning (following appointment of an architect) involves the preparation of preliminary plans and schematic drawings. The partial schematics prepared at the end of the preliminary design development stage must be presented for approval by the Regents before the preparation of the more costly working drawings can begin. Following such approval by the Regents and their concurrent review of the EIR (discussed infra), preparation of working drawings commences. This phase of planning extends over many months (as in the case of the Moffitt Hospitalization Modernization, more than a year). Thereafter, the construction documents are prepared and made available to contractors, bids are received and reviewed, and construction...