On August 3, 2015, the California Supreme Court issued an opinion for City of San Diego v. Board of Trustees of the California State University, Case No. S199557. The Court held that a state agency may not condition its fair-share contribution to off-site mitigation on receipt of Legislative appropriations, to the exclusion of other available sources of funding, and then find mitigation infeasible if the funds are not appropriated. The Court dismissed as dictum its prior statement that “a state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” (City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341.) The Court found that permitting projects whose mitigation were premised on Legislative appropriations to move forward with no analysis of alternate mitigation funding, should the appropriations never materialize, would lead to absurd practical results. Such a rule would substantially impair the fundamental CEQA directive that each public agency mitigate or avoid the significant effects of its projects.

For a more detailed analysis, please see our blog post here.