In California Oak Foundation v. Regents of the University of California ( 2010) 188 Cal.App.4th 227, appellants California Oak Foundation (California Oak) challenged the Regents of the University of California’s certification of the EIR for the University’s Southeast Campus Integrated Projects, prepared for seven related projects at the University of California at Berkeley, and its approval of the proposed Student Athlete High Performance Center, which is the first phase of one such project, the California Memorial Stadium Seismic Corrections and Program Improvements Project (Stadium Project). Appellants claimed that in certifying the EIR and approving the Athlete Center, the Regents violated the Alquist-Priolo Earthquake Fault Zoning Act and CEQA.

The First Appellate District, in affirming the trial court judgment, found that while the Athlete Center is subject to the Alquist-Priolo Act based on its proposed location within an earthquake fault zone, the Regents could properly find the Athlete Center will not be an “addition” or “alteration” to the University’s California Memorial Stadium, as defined by the statute, and thus is not subject to the statute’s value restriction on certain projects coming within those definitions. The court further held that the Regents acted in accordance with CEQA in certifying the EIR because it contains sufficient information regarding the projects’ likely environmental impacts, as well as feasible alternatives to or mitigation measures for those projects to avoid or minimize the identified impacts.

The Integrated Projects are part of the UC Berkeley 2020 Long Range Development Plan. While the Regents certified an EIR for the LRDP in 2005 (2020 LRDP EIR), the University determined the Integrated Projects could have significant impacts on the environment and that an EIR, independent from the 2020 LRDP EIR, was therefore necessary. The EIR “provides a project-level analysis of the [Integrated Projects] and is tiered from the 2020 LRDP EIR.” After circulation, public comments, public hearings and revisions, the EIR concluded that, by implementing the proposed mitigation measures, most of the Integrated Projects’ significant environmental impacts would be reduced to less than significant levels. The EIR further concludes, however, that in some areas significant impacts could not feasibly be mitigated.

The Stadium Project, consisting of three phases, is the first of the Integrated Projects scheduled to proceed. Only Phase I was presented to the Regents for approval in conjunction with certification of the EIR. Phase I involves construction of the Athlete Center, a multi-level, 158,000-square foot structure immediately to the west of the Stadium, designed to accommodate 13 varsity sports in addition to men’s football, and to provide training and program space for about 450 athletes. The Stadium, built in 1923, sits astride the Hayward fault, and was rated seismically “poor” under the University’s seismic evaluation guidelines. By moving these occupants out of the Stadium in Phase I, the University would be able to proceed with Phases II and III, which involve renovation and seismic retrofitting of the Stadium. Phases II and III, along with the remaining Integrated Projects, were to be presented to the Regents for budget and design approval at a later date, at which time the Regents would also decide whether additional CEQA environmental review was necessary.

California Oak filed petitions challenging the Regents’ certification of the EIR and approval of the Athlete Center project under both CEQA and the Alquist-Priolo Act. After a trial on the merits, the trial court ultimately denied California Oak’s CEQA and Alquist-Priolo Act claims, each with one exception. The trial court issued a peremptory writ of mandate ordering the Regents to take action consistent with its conclusions. The trial court thereafter deemed the Regents’ response to its June 18, 2008 order, which was submitted on June 27, 2008, to be a return to the writ of mandate. In this response, the Regents advised the trial court that the elements of the Stadium and Athlete Center projects that had given rise to the trial court’s exceptions had been subsequently removed. Based on this response, the trial court permitted construction of the Athlete Center to begin.

On appeal, California Oak presented two principal issues for consideration. First, appellants contend the Regents violated the Alquist-Priolo Act by approving the Athlete Center project, which is Phase I of the Stadium project. With certain exceptions, the Alquist-Priolo Act prohibits the construction of structures for human occupancy across the trace of an active fault or within 50 feet of an active fault, and prohibits the construction of an addition or alteration to a structure already existing on the trace of an active fault if the value of the addition or alteration exceeds 50 percent of the value of the structure.

Second, appellants contend the Regents violated CEQA by certifying a defective EIR for the Integrated Projects and by approving the Athlete Center project. CEQA, among other things, requires a public agency to prepare and certify an environmental impact report for qualifying projects to identify the proposed project’s significant environmental effects, to identify possible alternatives to the project, and to indicate ways in which the project’s significant environmental effects can be mitigated or avoided.

As to the first issue, the court acknowledged that both the Stadium and the Athlete Center are located within an earthquake fault zone, and thus are subject to the Alquist-Priolo Act. Accordingly, as the trial court noted, the Alquist-Priolo Act restricts the University’s ability to proceed with the Stadium project in three ways: (1) the University may not build a structure for human occupancy across the trace of an active fault; (2) the University may not build within 50 feet of an active fault unless it first demonstrates the proposed structure will not be built over an active branch of a fault; and (3) the University may not construct an addition or alteration to a structure built on the trace of an active fault before May 4, 1975, if the cost of the addition or alteration exceeds 50 percent of the structure’s value.

California Oak claimed that the Regents failed to make the threshold determination of whether the Athlete Center is an “addition” or “alteration” to the Stadium for purposes of the Act and, for the first time on appeal, California Oak argued that the action should be remanded so that the trial court could direct the Regents to perform this “legal duty.” But, the court said, there was no authority for imposing a legal duty in this regard where the Athlete Center was to be an independent structure not situated across the trace of an active fault, particularly where, as here, the University designed the Athlete Center to be an independent structure and confirmed it would not be situated across the trace of an active fault.

Putting aside the Regents’ alleged failure, as a procedural matter, to make certain determinations prior to project approval, the court nonetheless determined whether, as a substantive matter, the Regents violated the Alquist-Priolo Act by failing to adhere to the Act’s restriction on the value of additions and alterations to a preexisting structure for human occupancy situated across the trace of an active fault. This inquiry hinged on the statutory definition of three words: “addition,” “alteration,” and “structure.” Because neither the Alquist-Priolo Act nor its implementing regulations define these terms, the court turned to the rules of statutory interpretation for guidance, and determined that the trial court correctly concluded that the Athlete Center was not an alteration or addition to the Stadium. The court rejected California Oak’s reliance on the ordinary meanings of “addition” and “alteration” and held that both the California Building Code and the Uniform Building Code, relied on by the Regents and the trial court, were appropriate authorities from which the terms’ meaning could be gleaned. The court agreed with the Regents that, in the absence of express statutory language, the terms addition,” “alteration,” and “structure” should be defined with reference to the particular context in which they are used – to wit, building construction and improvement of structures for human occupancy in delineated earthquake fault zones. Those codes, as in effect in the general time frame when the Alquist-Priolo Act was enacted, and considered in conjunction with the evidence of record, demonstrated that the Athlete Center was not an alteration or addition for the Stadium. This evidence, including expert declarations of engineers and architects, focused on the degree to which the Athlete Center was designed to be a separate or “independent” building from the Stadium, both structurally and functionally. Among other things, the Athlete Center would not add floor area or height to the Stadium and, thus, would not meet the CBC’s definition of an addition; with respect to function, the Stadium would contribute to the Athlete Center’s functioning on a day-to-day basis only by virtue of proximity; and the Athlete Center would share no structural elements with the Stadium (including no shared beams, footings, wall elements or columns), and thus will not share the Stadium’s risk of earthquake fault rupture.

Given the conclusion that the trial court did not abuse its discretion in finding that the Athlete Center is not an addition or alteration to the Stadium, the court declined to disturb its related finding that the Regents had no obligation under the Alquist-Priolo Act to calculate the total cost of the Athlete Center project to ensure it does not exceed 50 percent of the Stadium’s value.

The court further held that reliance on the expert declarations was not extra-record evidence which the trial court lacked authority to consider pursuant to Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 574 [“extra-record evidence is generally not admissible in non-CEQA traditional mandamus actions challenging quasi-legislative administrative decisions”]. The court noted that the California Supreme Court in Western States took pains to confirm that it would continue to allow admission of extra-record evidence in traditional mandamus actions challenging ministerial or informal administrative actions if the facts are in dispute. Given the conflicting evidence regarding the Athlete Center’s design and its relationship to the Stadium, the court found that the trial court did not abuse its discretion in considering extra-record evidence in the form of expert declarations from engineers and architects when deciding whether the Regents complied with the Alquist-Priolo Act.

The court also rejected California Oak’s related contention that the Regents violated Alquist-Priolo by separating the Stadium project into three separate phases in order to ensure compliance with the Act’s restriction on the value of alterations or additions to structures built on active faults. The Regents were not required to calculate the cost of Phases II and III of the Stadium project before approving the Athlete Center, because those phases did not involve the Athlete Center and had not yet been presented to the Regents for approval and any challenge with respect to Phases II and III were premature.

In its first CEQA argument, California Oak claimed the DEIR lacked an adequate description of baseline geological conditions at the project sites because it did not contain information relating to an investigation and report, which was prepared by an independent company named Geomatrix and released after the DEIR was circulated. The court rejected this claim, noting the DEIR clearly disclosed that two of the Integrated Projects, the proposed Athlete Center and Maxwell Family Field parking structure, would be located within a delineated Alquist-Priolo Earthquake Fault Zone, but that neither would be constructed on a known active fault. Most significantly, both the DEIR and Final EIR identified as a “significant and unavoidable” impact the fact that people or structures at the project sites could be exposed to potentially substantial adverse effects, including the risk of loss, injury, or death from rupture of a known earthquake fault or strong seismic ground shaking. Further, the court held that Geomatrix report was not prepared to comply with CEQA; it was prepared to comply with the Alquist-Priolo Act, and nowhere in CEQA or the Guidelines is there a requirement that an EIR include geological reports prepared pursuant to the Alquist-Priolo Act, even when a description of baseline conditions includes information derived from it. Thus, there was no basis for concluding the description of baseline geological conditions in the DEIR or Final EIR was inadequate.

The court also held that substantial evidence supported the Regents’ decision that “no new significant information” was revealed in the Geomatrix report or in letters from California Geological Survey and the United States Geological Survey (CGS/USGS) that required revision or recirculation of the DEIR, as claimed by California Oak. Rather than revealing significant new information regarding the existence or severity of the project’s environmental impacts, the Geomatrix report merely confirmed and, indeed, provided further reassurance regarding what had already been disclosed to the public in the DEIR—that active faults are not known to be located within the footprint of the Athlete Center. Moreover, other than recommending an additional study, the CGS/USGS letters contained no actual evidence contradicting the conclusion in both the Geomatrix report and the DEIR that the project site was free of active faulting.

California Oak next claimed that the EIR’s description of the Integrated Projects was inadequate because it lacked the degree of specificity CEQA requires for a “project-level” EIR. The court found that the EIR, labeled a “project EIR,” contains a description for each of the Integrated Projects which included the four items required under Guidelines section 15124. The project description also identified and briefly discussed the projects’ primary characteristics which, in many instances, are then discussed in more detail in other chapters of the EIR. On this basis, the court found that the EIR’s project description for the Integrated Projects complied with CEQA. While the EIR provided more detail regarding the Athlete Center project than the other Integrated Projects, the Athlete Center project was the only project being presented for final approval in connection with the EIR’s certification. The court noted that the Regents insisted that additional EIRs will be prepared at a later date if the amount of detail provided for any of the other Integrated Projects proves inadequate, a commitment also set forth in the EIR. The court determined such deferral of additional environmental review was appropriate under CEQA.

The court then rejected California Oak’s claim that the EIR’s statement of objectives was impermissibly vague. The EIR identifies seven primary objectives for the Integrated Projects, and while some of the objectives were broad, the court held that when considered as a whole, the objectives served the requisite purpose of assisting in the development and evaluation of a reasonable range of alternatives to the Integrated Projects, which is what CEQA requires.

The court also rejected California Oak’s challenge to the adequacy of the project alternatives based on the University’s decision in the EIR to group components of the alternatives together and then to compare these “integrated” alternatives to the Integrated Projects as a whole, rather than to compare individual components of the alternatives to the individual projects that make up the Integrated Projects. The court held that the Regents’ approach to analyzing alternatives was appropriate in light of the fact that the University identified the “project” for purposes of CEQA as the Integrated Projects, and then identified specific objectives the Integrated Projects were collectively designed to meet. Furthermore, much of the analysis in the DEIR was actually performed on an individual project basis and the consideration of alternatives allows for a “mix-and-match” approach; thus, the groupings of alternatives in the Draft EIR do not limit the ability of the Regents to select individual alternative projects from among them. Accordingly, the court found the Regents complied with CEQA by making an objective, good faith effort to provide in the EIR a meaningful discussion of a range of reasonable project alternatives.

The court further found that the trial court correctly determined the EIR contained a sufficient analysis of archaeological resources and potential impacts associated with the Integrated Projects. The EIR disclosed the potential to destroy any prehistoric archaeological resources beneath the grounds of the projects, but the Regents pledged that the University would apply the mitigation measures and continuing best practices set out in the 2020 LRDP EIR, which in turn would reduce the impacts to less than significant levels.

Similarly, with respect to impacts to biological resources, the court found the EIR complied with CEQA by referring the reader to the discussion of biological resources in the 2020 LRDP EIR rather than directly addressing the issue of the removal of several coast live oak trees in the Memorial Oak Grove west of the Stadium to allow for the Athlete Center’s construction. The EIR tiers from the 2020 LRDP EIR, and the NOP noted the EIR expressly relied on the 2020 LRDP EIR for consideration of environmental effects on biological resources. While there was limited discussion in the 2020 LRDP EIR regarding the Memorial Oak Grove, the University did not consider the coast live oaks in the Memorial Oak Grove to be sensitive biological resources warranting further discussion for purposes of environmental review, a determination which the court found was supported by substantial evidence. As such, the court concluded the Regents were not required to adopt mitigation measures with respect to these trees before certifying the EIR. Furthermore, although not required by CEQA, the University took several actions to protect the Memorial Oak Grove trees from the impacts of the Integrated Projects. Given the foregoing, the court concluded that the EIR’s treatment of adverse impacts to biological resources was more than adequate.

The court also rejected California Oak’s contention that certification of the EIR was flawed because certain of the Regents’ findings in support of it were not supported by substantial evidence. Specifically, they challenged the finding that the Integrated Projects will have no cumulative impacts on cultural resources after mitigation measures are implemented with “one possible exception” – the demolition or moving of three 19th-century homes (the Durant and College Avenue houses). The court found that while the findings disclosed a “significant adverse effect” on cultural resources, the Regents also identified and adopted two measures to mitigate this adverse effect. In addition, while removal of the houses could have a significant cumulative impact on cultural resources, as the trial court found, any decision to remove one of the houses would need to be made by the City rather than the University. Thus, given their lack of control over this potentially cumulative impact, the court held it could not fault the Regents for not doing more to address it.

Turning to the Regents’ findings with respect to project alternatives, the court rejected this argument as it merely rehashed one already considered and rejected—that the EIR’s analysis of project alternatives was somehow deficient because components of the alternatives were grouped together and compared to the Integrated Projects as a whole.

California Oak also challenged the Regents’ statement of overriding considerations, which the court rejected. Again, California Oak essentially restated an argument rejected elsewhere in the opinion – that the Regents’ treatment of potential impacts to biological resources at the site of the proposed Athlete Center was somehow inadequate. For reasons already provided, the court found that substantial evidence supported the University’s conclusions that the trees in the Memorial Oak Grove at the Athlete Center site are not “sensitive biological resources,” and thus, the EIR did not need to discuss the environmental impact of removing or replacing them. On that basis, the court declined to revisit the issue.

California Oak further claimed that the Regents violated CEQA by approving the Athlete Center project before completing its environmental review of the project. The court rejected this claim, agreeing with the Regents, that the decision in question was not final approval of the Athlete Center; rather, it was approval of the project’s budget. The University enacted the “Policy on Approval of Design, Long Range Development Plans, and the Administration of [CEQA]” (UC CEQA policy), which dictates that approval of a project’s design, not approval of a project’s budget, constitutes final “approval” for purposes of CEQA. The trial court pointed out that, consistent with this policy, the University prohibits the expenditure of any funds for construction of a capital project before the project’s EIR is certified and its design is approved, but not expenditure of funds for a project’s initial planning and feasibility studies. As such, the Regents decision in question came within Public Resource Code section 21102’s exception that allows an agency to authorize expenditure of funds on a project “involving only feasibility or planning studies for possible future actions,” before the agency has certified the EIR, and no violation of CEQA was committed by virtue of this approval.

California Oak next claimed that the Regents failed to proceed in the manner required by law by delegating the authority to certify the EIR to the Committee on Grounds and Buildings, because the Committee includes only 11 of the Regents’ 26 members. The court disagreed, noting that CEQA allows lead agencies to determine for themselves how they will assign responsibility for completing the certification; thus, there is no sound reason in law or policy why the agency cannot determine that a committee of its members is the proper body to complete the certification. The court further concluded, that based on the evidence in the record, including the Regents’ bylaws and the UC CEQA policy, the Regents did properly designate the Committee as the decision-making body responsible for certifying the EIR, making the requisite findings and approving the Athlete Center.

Finally, the court found that the trial court’s award of over $51,000 in costs to the University for preparing and copying the administrative record was reasonable. California Oak claimed that the $51,000 was not recoverable because neither the Regents’ notice nor its supplemental notice of the estimated cost of the preparation of the record, required under Alameda County Superior Court Local Rule 3.320 (a), included this amount. Rather, after a stipulation that the University would copy and lodge the administrative record, the University charged $51,442.63, an amount including $46,563.43 for labor in compiling the record and $4,879.20 for copying the record, without amending the notice of estimated costs. California Oak claimed that, in making this stipulation, they understood the University would adhere to that cost estimate in the notice of estimated costs, and claim it was error for the trial court to award the University a total of $51,442.63 for performing these tasks, and requested that the court reduce the award. The court declined to do so, noting that in light of the extensive history and complex nature of the proceedings, it was not surprising the University spent a great deal of time and expense ensuring the entire administrative record was prepared and copied in an appropriate manner. As such, the court held the trial court did not exceed the bounds of reason in accepting as reasonable the hours and rates claimed by the University for performing these necessary tasks. Moreover, while the trial court found the Regents’ costs were mostly reasonable, it had disallowed any recovery for expert witness fees, reduced the hourly rate claimed for paralegal labor, and reduced the entire award by 15 percent on the ground that the Regents had prevailed only with respect to 85 percent of the proceedings. In light of these considerations, the court concluded the trial court properly exercised its discretion in awarding the Regents $51,442.63 in costs for preparing and copying the administrative record.

Having found no basis for setting aside the Regents’ certification of the EIR or their approval of the Athlete Center project, the court affirmed the trial court’s denial of the writ of mandate and award to the Regents of $51,442.63 for costs expended in preparing and copying the administrative record.