City of Hayward v. Board of Trustees of the California State University (1^st Dist. June 28, 2012) __Cal.App.4th__ (Case Nos. A13412, A132424, A131413, A132423) 

October 17, 2012, Petition for Review granted; California Supreme Court Case No. S203939

On May 30, 2012, the First Appellate District affirmed a lower court’s grant of a petition for writ of mandate challenging the expansion of the California State University (CSU) East Bay campus and the certification of an EIR for the project under CEQA. The trial court had agreed with plaintiffs City of Hayward and two local community groups, Hayward Area Planning Association and Old Highlands Homeowners Association, that the EIR prepared by the Board of Trustees of the California State University (the Trustees) failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands. The First District, however, disagreed with the trial court and found the EIR to be adequate in all respects except it determined the EIR’s analysis of potential environmental impacts to parkland was not supported by substantial evidence. The court, therefore, directed that the scope of the writ of mandate be modified.

The case involves a challenge to the Trustees’ 2009 approval of a master plan to guide the development of the California State University East Bay (the University) for the next 20 to 30 years in order to expand the campus’s physical capacity to meet its assigned enrollment ceiling.  In March 2009, a final EIR was issued which concluded that the buildout under the master plan will result in significant impacts in four categories despite the implementation of all feasible mitigation measures: (1) aesthetics, (2) air quality, (3) cultural resources, and (4) traffic. All other impacts, including impacts on public services, were found to be insignificant or fully mitigated.

In October 2009, the city and local community groups filed separate petitions for writ of mandate challenging the certification of the EIR and approval of the master plan. The cases were coordinated for briefing and hearing. On October 28, 2010, the court issued an order granting petition for writ of mandate. On December 21, 2010, separate judgments were entered in the two cases. The trial court held that the EIR failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands. The Trustees appealed and the cases were consolidated on appeal for briefing and decision.

Fire and Emergency Medical Services

On appeal, the court disagreed with the trial court’s finding that the EIR’s analysis of the master plan’s impacts to fire and emergency medical services was inadequate. The EIR had found that the master plan would result in the need for 11 additional firefighters and additional fire station facilities to house the staff required to serve the increased population associated with the master plan. The EIR concluded, however, that expansion or construction of a fire station would not result in significant environmental impacts due to the limited area that is typically required to build a fire station (between 0.5 and 1 acre) and its urban location. The appellate court found that the record supported this conclusion in the EIR. The court concluded that the determination that the potential impacts of the fire station would be less than significant was based on the information available (i.e., the known size requirements and the general area within which the additional facilities would necessarily be placed) which constituted substantial evidence. The court noted that, given the unknown size and precise location of the future facilities and the absence of control by the Trustees of over the future decision-making process (because emergency services are provided by the City’s Hayward Fire Department), no more detailed analysis of the potential impacts of the potential fire station was possible or required.

The court also found that no mitigation was necessary to address the need for additional fire protection services due to the potential increase in response time caused by the increase in population under the master plan. The court noted that, under the California Constitution, the obligation to provide adequate fire and emergency medical services fell to the city. Furthermore, the court, citing CEQA Guidelines § 15382 and Goleta Union School District v. Regents of University of California (1995) 37 Cal.App.4th 1025, held that the need for additional fire protection service is not an environmental impact that CEQA requires a project to mitigate.

The court rejected the respondents’ argument that under City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, the Trustees were required to pay for an additional fire station and the salaries of additional fire fighters. In City of Marina, mitigation to fund improvements to fire protection services was required because the EIR concluded the project would result in significant environmental impacts. In contrast, the court noted, the master plan EIR determined, based on substantial evidence, that implementation of the master plan would not result in a significant impact.  

The court also rejected the respondents’ reliance on Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, to argue that delayed response times must be evaluated as a “health and safety problem” under section 15126.2 of the Guidelines. In Bakersfield Citizens, the court found that the EIR for a shopping center was inadequate because it failed to correlate identified significant and unavoidable air quality impacts to resultant adverse health effects, and, therefore, the public was not apprised of the health consequences that result when more pollutants are added to a nonattainment basin. The court noted that in the University EIR, a concerned citizen reading the EIR would understand the impacts of the proposed increase in population on emergency services in the area. The EIR analyzed the response times and their impact on public safety, concluded that the project will cause response times to fall to an inadequate service level, found that additional fire fighters will be required to maintain adequate service levels, set forth the measures needed to provide adequate emergency services, and concluded that those measures will not have a significant impact on the environment.

Furthermore, the court found that the potential dangers associated with delayed response times do not mandate a finding of significance under CEQA Guidelines § 15065(a)(4). Based on the analysis in the EIR, and because the city has a constitutional obligation to provide adequate fire protection services, there was no basis to conclude that the increased population would cause a “substantial adverse effect on human beings.”

Finally, the court found no deficiency in the EIR’s analysis of cumulative impacts on public services. The EIR based its analysis of cumulative impacts on the evaluation of cumulative impacts made in connection with the adoption of the city’s general plan, which found no cumulative impact from city growth on fire services. Accordingly, the EIR reasonably concluded that any cumulative impact of the growth will be less than significant.

Traffic Impacts

The plaintiffs also objected to the analysis of one potential location for future construction of affordable faculty housing, arguing that the EIR should have evaluated potential impacts to additional roads in the immediate neighborhood. The court found, however, that the analysis of traffic and parking impacts of potential sites for faculty housing was sufficient because no site had yet been selected. As a program EIR, therefore, the master plan EIR appropriately evaluated the potential cumulative impacts of locating faculty housing near Grandview Avenue on the primary intersections in that area. Any site-specific impacts to the smaller residential streets in the neighborhood and related mitigation measures, however, were properly deferred until the affordable faculty housing project is planned and a project EIR is prepared.

Furthermore, the court found the reliance on a Transportation Demand Management (TDM) program to mitigate significant impacts caused by increased parking and traffic did not constitute impermissible deferred mitigation. The court noted that the TDM sets forth specific alternative policies that may be utilized to mitigate traffic growth, incorporates quantitative criteria, and sets specific deadlines for completion of the parking and traffic study timelines for reporting to the city on the implementation and effectiveness of the measures that will be studied. The plan also included a monitoring program which ensures that the public will have access to the information necessary to evaluate compliance with the Trustees’ obligations.

Parklands Impacts

In assessing the potential impact on area parklands, the EIR concluded that the impact on the East Bay Regional Park District would be insignificant because the master plan included ample on-campus recreation offerings and, therefore, use of off-campus recreational resource by the additional student population would be nominal because the on-campus facilities would adequately support the campus population. The court agreed with the trial court that this analysis was inadequate.

First, because the EIR focused on the entire regional park district, it failed to perform a project-level analysis of impacts to specific parks. In particular, it failed consider the specific impacts on two neighboring parks, Garin Regional Park and Dry Creek Pioneer Regional Park. The Trustees argued that the EIR’s analysis was sufficient because it was reasonable to conclude that the new student population would make the same “nominal” use of these parks “consistent with long-standing use patterns” and that the master plan included ample on-campus recreation offerings. The court disagreed, noting that the EIR failed to provide factual evidence to support this assumption. There were currently 12,586 full-time-equivalent students enrolled at the university. The EIR disclosed no attempt to determine the extent to which these students made use of the adjacent parklands or to extrapolate from such data estimated increased usage by the additional approximately 5,500 anticipated full-time equivalent students. Nor was any such calculation made for the existing approximately 1,200 residential students and the 600 students anticipated to live in the new student housing project. Moreover, the record contained no evidence regarding overall usage or capacity of the neighboring parks. As the trial court noted, evaluating the potential impact on the entire East Bay Regional Park District cast too broad a net and did nothing to expose potential impacts on the neighboring parks.

Furthermore, the fact that there were ample on-campus recreation opportunities did not support the finding that additional use of the nearby regional parks would be “nominal.” The types of recreational opportunities offered on campus and in the neighboring parks were significantly different. The athletic fields, recreation center, swimming pool and grassy fields found on campus were not comparable to the recreational opportunities available in the 4,763 acres of neighboring parkland. Without any data concerning the extent to which the current-size student body (or anybody else) utilized the adjacent parks, the court concluded it was not reasonable to assume that the “informal trails” available on a 130-acre open space reserve on campus would keep significant numbers of new students from making use of the neighboring parklands.

The court accordingly reversed the trial court’s judgment except to the extent it required the Trustees, before considering certification of a revised EIR, to revise their analysis of the impacts of the master plan and related site-specific projects to area parklands.

City of San Diego v. Board of Trustees of the California State University
(2011) 201 Cal.App.4th 1134

(April 18, 2012, Petition for Review granted; CA Supreme Court Case No. 199557)

The Fourth District Court of Appeal ruled the California State University violated CEQA by considering an appropriation from the State Legislature as the only means of making “fair share” payments for off-site traffic improvements.  The Court ruled CSU had an obligation under CEQA to consider other ways of raising the money necessary to pay its fair share for these improvements.

In 2005, the CSU Board of Trustees certified an EIR and approved a master plan to expand San Diego State University to increase its enrollment from 25,000 to 35,000 students.  While litigation was pending, the Supreme Court issued its opinion in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341.  The trial court granted the petition and remanded the matter back to CSU.  CSU circulated a revised EIR and, in November 2007, certified the revised EIR and re-approved the master plan.  In December 2007, various local agencies sued.  In March 2010, the trial court concluded CSU had complied with Marina and entered judgment denying the petitions.  The local agencies appealed.

The EIR included an analysis of the master plan’s traffic impacts.  The EIR identified 34 separate traffic impacts.  The EIR also identified improvements that would avoid 30 of the 34 traffic impacts; the other four impacts were identified as significant and unavoidable.  With respect to the other 30 impacts, the EIR calculated CSU’s “fair share” for the cost of the improvements.  The EIR stated payment of fair-share funding was conditioned on requesting and obtaining funds from the California Legislature; if the Legislature did not appropriate the money, then the impacts would be significant and unavoidable.  The City of San Diego submitted comments criticizing this approach as based on dictum from the Marina decision.  In the Final EIR, CSU responded by stating that, under Marina, CSU was obliged to request funding from the Legislature, but could not assure the appropriation of funds.  In its findings, CSU committed to ask for the fair-share funding, but because funding could not be assured, CSU found that the traffic impacts were significant and unavoidable.  CSU conditioned the commitment to pay on State appropriation of the money.  The findings also noted that, even if fair-share payments were made, there was no way to ensure the underlying improvements would be constructed, because the improvements were within the jurisdiction of other agencies (e.g., the City of San Diego and Caltrans).

CSU based its position on the following statement in the Marina decision:  “[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.”  (39 Cal.4^th at p. 367.)  According to CSU, absent a legislative appropriation, fair-share payments for off-site infrastructure were infeasible.  The City and other local agencies argued CSU’s rejection of fair-share funding as “infeasible” was based on a misreading of Marina.  They also argued the EIR was inadequate because it did not discuss alternative approaches to making fair-share payments, other than by means of an appropriation by the Legislature.  The Court agreed.  The Marina Court’s statement was dictum, and the Court declined to follow it.  According to the Court, “neither CEQA nor any provision of the Education Code or other statute precludes CSU (or any other state agency) from using nonlegislatively appropriated funding for making voluntary payments to third parties for mitigation of the off-site significant environmental effects of its projects. . . .  The availability of potential sources of funding other than the Legislature for off-site mitigation measures should have been addressed in the DEIR and FEIR and all of those potential sources should not be deemed ‘infeasible’ sources for CSU’s ‘fair-share’ funding of off-site mitigation measures without a comprehensive discussion of those sources and compelling reasons showing those sources cannot, as a matter of law, be used to pay for mitigation of the significant off-site environmental effects of the [p]roject.”  Because the EIR’s discussion of traffic mitigation, and CSU’s corresponding findings, were premised on CSU’s misreading of its legal obligations, they had to be set aside.  Moreover, the EIR did not contain an adequate discussion of alternatives – such as down-sizing the project – as a means of avoiding the need for off-campus traffic improvements.

CSU argued the Court ought not to reach the “fair-share” issue because the proper interpretation of the Marina decision was never presented to CSU during the administrative process.  The Court disagreed, citing letters and testimony stating or implying that CSU had a duty to mitigate the project’s offsite impacts, even if the Legislature did not appropriate money and other funding sources had to be considered.

Appellants San Diego Association of Governments (“SANDAG”) and San Diego Metropolitan Transit System (“MTS”) argued the EIR’s traffic analysis was inadequate because it miscalculated the “average daily trips” (“ADT”) that would be generated by new resident and commuter students.  The Court disagreed, finding that substantial evidence supported CSU’s methodology.  In particular, the EIR had not double-counted reductions in trips from transit use, or resulting from former commuter students moving on-campus.  CSU also acted within its discretion in relying on projections of increased transit use in the future.  Because substantial evidence supported the EIR’s ADT estimates, the EIR’s “fair share” estimates were similarly supported.

In response to comments, CSU adopted a mitigation measure committing to develop a campus-wide “Transportation Demand Management” program, in consultation with SANDAG and MTS, to encourage alternative modes of transit.  SANDAG and MTS attacked this measure as improper deferral of mitigation.  The Court agreed, finding that the measure committed CSU only to consult with SANDAG and MTS, and then developer a TDM at a future date.  The measure did not identify specific actions to be taken, or performance standards to be achieved.

SANDAG and MTS argued the EIR did not provide an adequate analysis of the project’s impact on transit.  The EIR’s traffic analysis estimated that, in the future, the percentage of students relying on the region’s trolley system would increase.  The EIR did not, however, analyze the impacts of increased trolley use.  SANDAG submitted a letter stating CSU had to analyze the trolley system’s capacity to handle the projected increases in use, to identify system capacity constraints, and to describe and adopt measures that CSU would take to increase that capacity.  MTS stated the bus and trolley systems had inadequate capacity to handle projected increases in student use, and that MTS had inadequate funds to support expanded use.  CSU responded that, for CEQA purposes, increased transit use was not an “impact”; moreover, no criteria were available to determine whether the project’s impact on the transit system was “significant,” triggering the need for mitigation.  The Court held that, although CSU estimated the anticipated increase in transit use, CSU did not analyze adequately the impacts of such use.  Once SANDAG and MTS raised the issue, CSU had an obligation to investigate the transit capacity issue.  The record did not contain substantial evidence supporting CSU’s conclusion that the project would not adversely affect the transit system.