Residents Ad Hoc Stadium Com. v. Board of Trustees

• Citation: 89 Cal.App.3d 274,152 Cal.Rptr. 585
• Court: California Court of Appeals
• Decision Date: 07 February 1979
• Parties: RESIDENTS AD HOC STADIUM COMMITTEE, an Unincorporated Association, David Troehler, Don Gennuso and Ruth Albright, Plaintiffs and Appellants, v. The TRUSTEES OF the CALIFORNIA STATE UNIVERSITY AND COLLEGES, Dr. Glenn S. Dumke, Individually and in his capacity as Chancellor of the California State University and Colleges, Norman Baxter, Individually and in his capacity as President, California State University, Fresno, Defendants and Respondents. Civ. 17414.

Page 585

152 Cal.Rptr. 585

89 Cal.App.3d 274

RESIDENTS AD HOC STADIUM COMMITTEE, an Unincorporated Association, David Troehler, Don Gennuso and Ruth Albright, Plaintiffs and Appellants, v. The TRUSTEES OF the CALIFORNIA STATE UNIVERSITY AND COLLEGES, Dr. Glenn S. Dumke, Individually and in his capacity as Chancellor of the California State University and Colleges, Norman Baxter, Individually and in his capacity as President, California State University, Fresno, Defendants and Respondents.

Civ. 17414.

Court of Appeal, Third District, California.

Feb. 7, 1979.

As Modified Feb. 20, 1979.

Hearing Denied April 9, 1979.

Judith L. Soley and Gallagher, Soley & Gollmer, Fresno, for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., and Carol Hunter, Deputy Atty. Gen., for defendants and respondents.

EVANS, Associate Justice.

The plaintiffs, Residents Ad Hoc Stadium Committee, David Troehler, Don Gennuso, and Ruth Albright, appeal from a judgment which found that an environmental impact report (EIR) adequately supported the decision of defendants, Trustees of the California State University and Colleges (Trustees), which approved and authorized construction of an athletic stadium located in the northwest area of the campus of California State University at Fresno (CSUF). The proposed site at the southwest corner of the intersection of Barstow and Cedar Avenues in Fresno was acquired by the university in 1958 and 1959. At the time of acquisition, the area was surrounded largely by open agricultural land. At the time the EIR was prepared, the surrounding area was developed residentially with single family homes, apartments, sorority and fraternity houses, and the CSUF campus.

The California State College System plans its campus development pursuant to master plans adopted by the Trustees; since 1954, the master plan of CSUF has designated the proposed site as the location of an athletic stadium. The present master plan adopted in 1959 and last amended in 1975 also designated the precise location as a stadium site.

In March 1975, the Trustees decided to go forward with construction of the stadium, and on July 14, 1975, contracted with Environmental Impact Planning Corporation (Corporation) for preparation of a draft EIR. In preparation of the draft, the Corporation consulted with the City of Fresno and other public agencies, individuals, CSUF officials, and interested or adjoining property owners. Many of the consulted agencies and individuals submitted comments on the project which were considered by the Trustees prior to adoption of the final EIR.

The Board of Trustees' Committee on campus planning held two public meetings: one in February and one in May 1976, at which public participation was invited and had. At its May 1976 meeting, the Board of Trustees approved the construction of the stadium at the proposed site and made its determination that the final EIR met the requirements of the California Environmental Quality Act of 1970 (CEQA). (Pub.Resources Code, §§ 21000-21176.) ¹ On June 7, 1976, notice of that determination was filed with the secretary of the resources agency. That notice contained the information required by section 21161.

Plaintiffs thereafter filed suit seeking to invalidate the EIR as a post-hoc rationalization of the project, to enjoin solicitation of building funds for the stadium, and to determine that the scope of judicial review (substantial evidence test), as provided in section 21168, is unconstitutional as it denied plaintiffs equal protection under the laws. From an adverse judgment plaintiffs present an appeal in which numerous fractionalized issues have been presented for our consideration. A distillation of the 20 issues and subissues presented reveals the following to be the crux of the appeal: (1) The provisions of sections 21168 and 21168.5, that the substantial evidence test applied to judicial review of administrative decisions on the adequacy of an EIR, violate the equal protection provision of the California Constitution. Plaintiffs hypothesize the review involves a fundamental vested right requiring use of the independent judgment test. (2) The failure of the Trustees to make specific findings on whether the necessity for the stadium outweighed adverse environmental consequences of the project invalidated their determination. (3) The EIR does not meet the requirements of CEQA and is at most a post-hoc rationalization for the stadium construction; it does not adequately respond to comments made and fails to adequately discuss alternative or mitigation measures. (4) The EIR should be determined to be invalid as it does not discuss the environmental consequences of other elements of the CSUF campus master plan (a field house and parking lot) even though those elements are not proposed for present construction. (5) The court erred by its failure to award plaintiffs attorney fees; plaintiffs assert they occupy the status conceptualized as "Private Attorney General."

I

Plaintiffs' contention that a fundamental right is involved where an administrative agency authorizes a public construction project after determining that an EIR is sufficient, appears to be predicated on a conclusive assertion as it is not supported by any judicial precedents.

Despite the legislatively expressed public policy considerations inherent in matters of environmental concern (Pub.Resources Code, §§ 21000, 21001), California courts have consistently held that no fundamental right is involved in Granting, as opposed to cancellation, of a construction permit. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 510, fn. 1, 113 Cal.Rptr. 836, 522 P.2d 12; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74-75, 118 Cal.Rptr. 34, 529 P.2d 66; Gallegos v. State Bd. of Forestry (1978) 76 Cal.App.3d 945, 950-951, 142 Cal.Rptr. 86; Simons v. City of Los Angeles (1977) 72 Cal.App.3d 924, 929-930, 140 Cal.Rptr. 484; Sierra Club v. California Coastal Zone Conservation Com. (1976) 58 Cal.App.3d 149, 156, 129 Cal.Rptr. 743; San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App.3d 584, 592-593, 122 Cal.Rptr. 100; Plan for Arcadia, Inc. v. City Council of Arcadia (1974) 42 Cal.App.3d 712, 725, 117 Cal.Rptr. 96; Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497, 518, fn. 18, 113 Cal.Rptr. 539.)

As a consequence of the clear, unequivocal, legislative statement contained in section 21168, the independent judgment test is not applicable to judicial review undertaken pursuant to sections 21168 and 21168.5.

Public Resources Code section 21168 states: "Any action or proceeding to attack, review, set aside, void or annul a determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with the provisions of this division shall be in accordance with the provisions of Section 1094.5 of the Code of Civil Procedure. (P) In any such action, The court shall not exercise its independent judgment on the evidence but shall only determine whether the act or decision is supported by substantial evidence in the light of the whole record." (Emphasis added.)

Public Resources Code section 21168.7 states, "Sections 21168 and 21168.5 are declaratory of existing law with respect to the judicial review of determinations or decisions of public agencies made pursuant to this division." Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242, which held that the independent judgment test applies to judicial review of certain administrative decisions, was decided prior to the enactment of section 21168.5 and is not here applicable. The Legislature has stated that upon judicial review the substantial evidence test is to be utilized (§ 21168). Imposition of the independent judgment test upon judicial review may only be required by legislative amendment. This court is disinclined to intrude judicially into the legislative function under the guise of statutory interpretation. Furthermore, the fact that section 21168.5 was amended in 1976 without change in the directive that the substantial evidence test be used, reveals a legislative intention that the independent judgment test not be applied. ²

The provisions in section 21168 that noncompliance shall be determined in accord with Code of Civil Procedure section 1094.5 does not impair the vigor of the directive in the section that, "In any such action, the court shall . . . only determine whether the act or decision is supported by substantial evidence in the light of the whole record." A similar intent is evidenced in section 21168.5, which provides, ". . . the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence."

We conclude that judicial review limited to a determination of whether the Trustees' decision that the EIR met the minimum standards of CEQA is supported by substantial evidence does not constitute a violation of equal protection. The statutes contain a valid expression of legislative intent. (See County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189, 139 Cal.Rptr. 396; Simons v. City of Los Angeles, supra, 72 Cal.App.3d at p. 929, 140 Cal.Rptr. 484.)

II

Plaintiffs assert the Trustees' omission to make findings (§ 21081) that the necessity of the stadium project outweighed adverse environmental facts, renders its determination invalid.

Section 21081 was approved by the Legislature on September 28, 1976, and became operable January 1, 1977; the Trustees made their determination on May 26, 1976. The Trustees' failure to make findings...