Fifth District Court of Appeal Sets Aside Mixed Use Development Project Because of Project’s Incomplete Environmental Impact Report

On February 23, 2011, in Landvalue 77, LLC v. Board of Trustees (2011) 193 Cal.App.4th 675, the Fifth District Court of Appeal decided that because an EIR for a mixed use development project contained inadequate environmental analyses with respect to certain categories of environmental impacts, the EIR was incomplete, necessitating decertification of the entire EIR and rescission of the project’s approval.

The case involves a mixed-use development project which would include residential facilities for students, faculty and seniors, office spaces, retail stores, a hotel, and a 14-screen movie theater on the Fresno State University Campus. Landvalue 77, LLC brought suit against the Board of Trustees of the University, challenging the project’s EIR under CEQA. The trial court agreed with Landvalue, finding the EIR inadequately analyzed the project’s water supply, traffic, and air quality impacts. The trial judge directed the Board of Trustees to “take action with respect to the comment 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 judgment also included an order to issue a peremptory writ of mandate, directing the board to set aside, in part, the EIR certification. The writ of mandate was never filed or issued, however, and the Board of Trustees filed an appeal.

The court of appeal first considered the trial court’s failure to issue a peremptory writ of mandate. The court concluded that the failure to issue the writ violated Public Resources Code section 21168.9. Public Resources Code section 21168.9, subdivision (a) provides: “If a court finds, as a result of a trial…that any determination, finding, or decision of a public agency has been made without compliance with [CEQA], the court shall enter an order that includes . . . a mandate that the determination, finding, or decision be voided by the public agency . . . .” While the Trustees argued that the judgment given was essentially a writ, and the fact that a writ was never formally issued made no practical difference, the court concluded that the trial court erred in not issuing a writ based on the mandatory language provided by Public Resources Code section 21168.9.

Next, the court looked at whether the trial court erred in severing the identified CEQA defects instead of overturning the entire project approval. The Trustees argued that the court need only issue remedies as necessary in order to achieve compliance with CEQA, and therefore should set aside only those aspects of the EIR which were considered inadequate. The court of appeal disagreed, reasoning that “an EIR is either complete or it is not” and it would be incompatible with the provisions of the CEQA to partially certify an EIR. The court noted that the trial court did not sever a portion or specific project activity, as permitted by CEQA, and concluded that both the EIR certification and project approval must be set aside.