Docket No. S117816
City of Marina v. Cal. State Trustees
Filed 7/31/06
IN THE SUPREME COURT OF CALIFORNIA
CITY OF MARINA et al.,
S117816
Plaintiffs
and
Respondents,
Ct.App. 6 H023158
v.
Monterey
County
BOARD OF TRUSTEES OF THE
Super. Ct. Nos.
CALIFORNIA STATE UNIVERSITY,
M41795 & M41781
)
Defendant and Appellant.
The Fort Ord Reuse Authority (FORA) challenges an environmental impact
report (EIR) prepared by the Board of Trustees of the California State University
(Trustees). The EIR concerns the Trustees’ plan to expand a small campus into a
major institution that will enroll 25,000 students. The planned expansion will
have significant effects on the physical environment throughout Fort Ord, the
former Army base on which the campus is located. While the Trustees have
agreed to mitigate effects occurring on the campus itself, they have disclaimed
responsibility for mitigating some effects occurring off campus. In particular, the
Trustees have refused to share the cost of certain infrastructure improvements
proposed by FORA, the base’s new civilian governing authority. FORA
challenges the Trustees’ decision to certify the EIR despite the remaining,
unmitigated effects as an abuse of discretion under the California Environmental
Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA). Like the superior
1
court, we conclude the Trustees have abused their discretion and thus reverse the
Court of Appeal’s contrary decision.
I. FACTUAL, LEGAL AND PROCEDURAL BACKGROUND
Fort Ord is a former United States Army base on the Pacific Coast, about five
miles north of Monterey and 125 miles south of San Francisco. The base lies on
the northern end of Monterey Bay, an important tourist destination known for its
scenic beauty and historic sites. In 1994, the Department of Defense formally
closed the base and transferred 27,000 acres (over 42 square miles) to a variety of
governmental entities and local organizations. The closure created both problems
and opportunities for the region. On one hand, the loss of one of the nation’s
largest military installations threatened to disrupt the local economy. On the other
hand, valuable land that for over 75 years had been exclusively controlled by the
Army became available for civilian economic development.
To provide a government for the former base and to manage its transition to
civilian use, the Legislature enacted the Fort Ord Reuse Authority Act (Gov.
Code, § 67650 et seq.) (hereafter the FORA Act or the act). Effective May 9,
1994, the act authorized FORA’s creation and conferred upon it governmental
powers and duties within the former base that prevail over those of any other local
governmental entity. (Id., § 67657, subd. (c).) FORA’s general statutory purpose
is “to plan for, finance, and carry out the transfer and reuse of the base in a
cooperative, coordinated, balanced, and decisive manner.” (Gov. Code, § 67652,
subd. (a).) The act also charges FORA with the more specific policy goals of
“facilitat[ing] the transfer and reuse of the real and other property [of the base] . . .
with all practical speed,” “minimiz[ing] the disruption caused by the base’s
closure on the civilian economy and the people of the Monterey Bay area,”
“maintain[ing] and protect[ing] the unique environmental resources of the area,”
and accomplishing these tasks “in ways that enhance the economy and quality of
2
life of the Monterey Bay community.” (Id., § 67651, subds. (a)-(d).) The 13
members of FORA’s governing board are appointed by local governments
neighboring the base—Monterey County and the Cities of Carmel, Del Rey Oaks,
Marina, Monterey, Pacific Grove, Salinas, Sand City and Seaside. (Id., § 67660.)
Also on the board are 10 ex officio, nonvoting members, including one appointed
by the Chancellor of the California State University. (Id., § 67661.)
The charter for Fort Ord’s future use and development is the statutorily
mandated Base Reuse Plan (hereafter Reuse Plan), which FORA adopted on June
13, 1997. (See Gov. Code, § 67675 et seq.) The plan addresses land use,
transportation, conservation, recreation and capital improvement in Fort Ord until
the year 2015. (See id., § 67675, subd. (c).) Pursuant to the plan, FORA will
make land available over time for a wide range of civilian uses, including
residential housing, business, light industry, research and development, visitor
services, recreation and education. All such development will require
improvements to the infrastructure the Army left behind. Recognizing this, the
Legislature gave FORA the power and duty to prepare the base’s infrastructure for
civilian development. In the words of the act, FORA “shall identify those
basewide public capital facilities . . . that serve residents or will serve future
residents of the base territory” (Gov. Code, § 67679, subd. (a)(1)) and “shall
undertake to plan for and arrange the provision of those facilities, including
arranging for their financing and construction or repair, remodeling, or
replacement” (ibid.; see also id., § 67675, subd. (c)(5) [Reuse Plan must include
capital improvement plan]).
FORA has, as the Legislature directed, prepared a capital improvement plan
identifying public facilities that need construction or improvement and projecting
future expenditures for that purpose through the year 2015. (See Gov. Code,
§ 67675, subd. (c)(5).) The facilities FORA has identified include elements of
3
Fort Ord’s infrastructure for transportation (mainly roadways), water supply and
distribution, wastewater management, drainage, and fire protection, among other
things. FORA plans to improve these facilities over the life of the Reuse Plan, as
increasing land use necessitates the improvements and as funding becomes
available. Funding is not expected to come through legislative appropriations.
Instead, the Legislature has directed FORA to arrange its own financing as it sees
fit (Gov. Code, § 67679, subd. (a)(1)), employing any of several funding methods
authorized in the FORA Act. FORA may, for example, “levy assessments,
reassessments, or special taxes and issue bonds” under existing laws governing
public finance (id., § 67679, subd. (d)),1 “levy development fees on development
projects within the area of the base” (id., § 67679, subd. (e)) pursuant to the
Mitigation Fee Act (id., § 66000 et seq.), sell or lease land (id., § 67678, subd.
(a)), and “seek state and federal grants and loans or other assistance” (id., § 67679,
subd. (c)). FORA and its local-government member agencies (id., § 67660) may
also provide by contract for the transfer of tax revenues (id., § 67691) and/or adopt
programs of local revenue sharing (id., § 67692).
In order to determine the long-term financial viability of the Reuse Plan,
FORA has prepared a Comprehensive Business Plan setting out assumptions about
1
Specifically the Improvement Act of 1911 (Sts. & Hy. Code, § 5000 et
seq.), the Improvement Bond Act of 1915 (id., § 8500 et seq.), the Municipal
Improvement Act of 1913 (id., § 10000 et seq.), the Benefit Assessment Act of
1982 (Gov. Code, § 54703 et seq.), the Landscaping and Lighting Act of 1972
(Sts. & Hy. Code, § 22500 et seq.), the Integrated Financing District Act (Gov.
Code, § 53175 et seq.), the Mello-Roos Community Facilities Act of 1982 (id.,
§ 53311 et seq.), the Infrastructure Financing District Act (id., § 53395 et seq.), the
Marks-Roos Local Bond Pooling Act of 1985 (id., § 6584 et seq.), the Revenue
Bond Law of 1941 (id., § 54300 et seq.), a law permitting fire suppression
assessments (id., § 50078 et seq.), and the Habitat Maintenance Funding Act (Fish
& G. Code, § 2900 et seq.). (See Gov. Code, § 67679, subd. (d).)
4
projected revenue and expenditures. As part of this exercise—one obviously
subject to numerous contingencies given the long planning horizon—FORA has
projected that it will spend $249.2 million to improve Fort Ord’s infrastructure
over the 20-year life of the Reuse Plan, i.e., from 1996 to 2015. FORA projects
that the largest part of its operational revenue over the same period will derive
from the sale of land and from a one-time special tax under the Mello-Roos
Community Facilities Act of 1982 (Gov. Code, § 53311 et seq.). Other revenue is
expected to come through local development fees, water and sewer fees, a grant
from the federal Economic Development Administration, and the annual dues of
FORA’s members.
The California State University (CSU) is the largest university system in the
United States. Governed by the Trustees, CSU’s 23 campuses across the state
collectively enroll 405,000 students and employ 44,000 faculty and staff. CSU
Monterey Bay (CSUMB), which occupies 1,370 acres transferred by the Army to
CSU in 1994, is presently the main user of the base. CSUMB opened in 1995 with
633 students, using existing military buildings, and now enrolls approximately
3,800 students, 2,600 of whom live on campus. From this modest beginning the
Trustees plan to expand enrollment at CSUMB greatly over the next few decades,
eventually reaching the target enrollment of 25,000 full-time equivalent (FTE2)
students in the year 2030. On May 13, 1998, the Trustees approved a Campus
Master Plan (hereafter Master Plan) to guide CSUMB toward this target. Under
the Master Plan, CSUMB’s resident population of students, faculty, staff and
household members would gradually increase to 10,350. The campus’s average
2
One FTE student, a term used in the Trustees’ planning documents, means
any number of students collectively enrolled in 15 units, e.g., one student taking a
full course load of 15 units, or three students taking five units each.
5
daily population, which also includes students who commute, would grow to
19,000.
Together with the Master Plan for CSUMB, the Trustees also prepared and
certified an EIR. The EIR is the focus of the environmental review process and, as
we have explained, “the primary means” of achieving the state’s declared policy
of taking “ ‘all action necessary to protect, rehabilitate, and enhance the
environmental quality of the state.’ ” (Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 392, quoting Pub.
Resources Code, § 21000, subd. (a); see also CEQA Guidelines,3 § 15003, subd.
(a).) The EIR’s more specific purposes are “to identify the significant effects on
the environment of a project, to identify alternatives to the project, and to indicate
the manner in which those significant effects can be mitigated or avoided.” (Pub.
Resources Code, § 21002.1, subd. (a).) CEQA expressly requires that an EIR
accompany the Master Plan for CSUMB. “The selection of a location for a
particular campus and the approval of a long range development plan are subject
to [CEQA] and require the preparation of an [EIR].” (Id., § 21080.09, subd. (b).)
The Trustees necessarily serve as the “lead agency” (id., § 21067) responsible for
preparing and certifying the EIR (id., § 21100, subd. (a)) because they possess
“full power and responsibility in the construction and development of any state
university campus” (Ed. Code, § 66606) and thus final authority to approve or
disapprove the Master Plan.
3
The term “CEQA Guidelines” refers to the regulations codified in title 14,
section 15000 et seq. of the California Code of Regulations, which have been
“prescribed by the Secretary of Resources to be followed by all state and local
agencies in California in the implementation of [CEQA].” (CEQA Guidelines,
§ 15000.)
6
In their EIR for CSUMB, the Trustees have determined that expanding
CSUMB to accommodate 25,000 students will have many significant effects on
the physical environment of Fort Ord. CEQA requires “[e]ach public agency [to]
mitigate or avoid the significant effects on the environment of projects that it
carries out or approves whenever it is feasible to do so” (Pub. Resources Code,
§ 21002.1, subd. (b)) and to discuss feasible methods of mitigation in the EIR (id.,
§ 21100, subd. (b)(3); CEQA Guidelines, § 15126.4, subd. (a)(1); see also Pub.
Res. Code, § 21002.1, subd. (a) [one purpose of the EIR is “to indicate the manner
in which . . . significant effects can be mitigated or avoided”].) In fact, the
Trustees’ EIR does identify and adopt specific measures that the Trustees have
found will mitigate most of the environmental effects of campus expansion to a
level that is less than significant. Full mitigation of five remaining effects,
however, will require action not just by the Trustees on the CSUMB campus but
also by FORA on a basewide or regional basis. These remaining effects have
become the subject of this litigation.
The Trustees’ EIR describes the five remaining environmental effects, for
which the Trustees have not provided full mitigation, as follows: (1) Drainage:
“Construction of new buildings and facilities will increase impervious surfaces
and runoff, and could result in localized drainage problems and/or flows exceeding
storm drain capacities, if storm drainage facilities are not adequately sized and
maintained.” (2) Water supply: “CSUMB water demand will contribute
incremental demands on existing deficient facilities and/or non-existent facilities.”
(3) Traffic: “Campus-related traffic will result in a decrease in level of service
7
from D to E[4] at the [Light Fighter] Drive/North-South Road intersection[5]
during the PM peak period in the year 2005, from D to E along Del Monte Blvd.
between Reindollar [Avenue] and Reservation Road[6] in the years 2005 and
2015, and will contribute to Highway 1 impacts in the years 2015 and 2030.”
(4) Wastewater management: “Campus growth will result in increased wastewater
generation that can be accommodated by the existing wastewater treatment
system, but will contribute flows to currently deficient sewer lines.” (5) Fire
protection: “Campus population and facility growth will result in increased
demand for fire protection services.”
Before a public agency, such as the Trustees, may approve a project for
which the EIR has identified significant effects on the environment, such as the
Master Plan for CSUMB, the agency must make one or more of the findings
required by section 21081 of the Public Resources Code. The required findings
constitute the principal means chosen by the Legislature to enforce the state’s
declared policy “that public agencies should not approve projects as proposed if
there are feasible alternatives or feasible mitigation measures available which
would substantially lessen the significant environmental effects of such projects
4
A decrease in the level of service from D to E means, in the context of the
EIR, that a road’s capacity to handle the existing traffic is no longer minimally
acceptable for an urban road.
5
The Light Fighter Drive/North-South Road intersection is located, as the
EIR explains, near [t]he main regional entrance” to the CSUMB campus. This
entrance has “the most convenient freeway access from State Highway 1 via Light
Fighter Drive interchange and is signed as the campus main entrance. Most trips
from the Monterey Peninsula, Santa Cruz County, and the San Francisco Bay Area
use this entrance. North-South Road is also an important local link to Seaside.”
6
This half-mile stretch of Del Monte Boulevard lies within the City of
Marina and connects State Highway 1 with Reservation Road, which leads to the
CSUMB campus.
8
. . . .” (Id., § 21002; see also id., § 21002.1, subd. (a).) More specifically, the
agency must find that the project’s significant environmental effects have been
mitigated or avoided (id., § 21081, subd. (a)(1)), that the measures necessary for
mitigation “are within the responsibility and jurisdiction of another public agency
and have been, or can and should be, adopted by that other agency” (id., subd.
(a)(2)), and/or that “specific economic, legal, social, technological, or other
considerations” render mitigation “infeasible” (id., subd. (a)(3)). When the agency
finds that mitigation is infeasible, the agency must also find “that specific
overriding economic, legal, social, technological, or other benefits of the project
outweigh the significant effects on the environment.” (Id., subd. (b).)7
7
This important section of CEQA (Pub. Resources Code, § 21081) provides
in full:
“Pursuant to the policy stated in Sections 21002 and 21002.1, no public
agency shall approve or carry out a project for which an environmental impact
report has been certified which identifies one or more significant effects on the
environment that would occur if the project is approved or carried out unless both
of the following occur:
“(a) The public agency makes one or more of the following findings with
respect to each significant effect:
“(1) Changes or alterations have been required in, or incorporated into, the
project which mitigate or avoid the significant effects on the environment.
“(2) Those changes or alterations are within the responsibility and
jurisdiction of another public agency and have been, or can and should be, adopted
by that other agency.
“(3) Specific economic, legal, social, technological, or other considerations,
including considerations for the provision of employment opportunities for highly
trained workers, make infeasible the mitigation measures or alternatives identified
in the environmental impact report.
“(b) With respect to significant effects which were subject to a finding
under paragraph (3) of subdivision (a), the public agency finds that specific
overriding economic, legal, social, technological, or other benefits of the project
outweigh the significant effects on the environment.”
9
In their EIR, the Trustees have identified and adopted a variety of measures
they have found will partially mitigate the five remaining environmental effects
noted above. Full mitigation of these effects to the level of insignificance will,
however, as the EIR specifically notes, require FORA to improve Fort Ord’s
infrastructure. In fact, FORA’s own planning documents take the Trustees’ plans
for CSUMB into account and propose specific infrastructure improvements that
will fully mitigate the expanding campus’s remaining effects on water supply,
drainage, wastewater management, traffic, and fire protection. Concerning each of
these effects, the Trustees have declared in their formal findings certifying the EIR
and approving the Master Plan (see Pub. Resources Code, § 21081) that the
implementation of FORA’s proposed improvements constitutes the “specific
measure to mitigate [each of CSUMB’s corresponding environmental impacts] to
the level of insignificance . . . .”
As part of its long-term planning process, FORA adopted the assumption that
that CSUMB would pay, as its share of the cost of infrastructure improvements, 18
annual installments of $1.139 million each, beginning in fiscal year 1997/1998 and
ending in fiscal year 2015/2016, for a total contribution over time of approxi-
mately $20.5 million. At the present time, however, FORA has not imposed any
tax, fee or charge on CSUMB or proposed to do so. Instead, FORA hopes to reach
agreement with the Trustees on their fair share of the cost of infrastructure
improvements. The Trustees, however, have refused to contribute any amount to
FORA for improvements in roads and fire protection, even while finding that
FORA’s proposed improvements constitute the specific measures necessary to
mitigate CSUMB’s effects in these areas. Accordingly, the Trustees cannot
logically find and, indeed, have not found that CSUMB’s effects have been fully
mitigated. Instead, to justify certifying the EIR and approving the Master Plan
despite the remaining, unmitigated effects, the Trustees rely on the following three
10
alternative findings: (1) improvements to roads and fire protection are the
responsibility of FORA rather than of the Trustees; (2) mitigation is infeasible
because the Trustees may not legally contribute funds toward these improvements;
and (3) the planned expansion of CSUMB offers overriding benefits that outweigh
any remaining unmitigated effects on the environment.8 (See Pub. Resources
Code, § 21081, subds. (a)(2), (3) & (b).)
While the Trustees have refused to contribute any amount for improvements
in roads and fire protection, they are willing to contribute for improvements in
water supply, drainage and wastewater management, albeit not in the amount
FORA has proposed. Instead, the Trustees propose to contribute through the
procedure set out in chapter 13.7 of the Government Code (section 54999 et seq.).
Chapter 13.7 authorizes a public utility that is providing a public utility service to
a public educational agency to impose a capital facilities fee on the latter “after
agreement has been reached between the two agencies through negotiations
entered into by both parties.” (Gov. Code, § 54999.3, subd. (b).) The resulting
dispute over the amount of the Trustees’ contribution creates uncertainty about the
extent to which CSUMB’s off-campus environmental effects will be mitigated.
8
Here, in their own words, is the Trustees’ finding about CSUMB’s effects
on traffic: “The Board of Trustees finds that the specific measure to mitigate this
impact to a level of insignificance is to implement the planned regional FORA
transportation improvements, as identified in the FORA Reuse Plan and
accompanying documents. Implementation of the planned regional improvements
are [sic] within the responsibility of FORA (not the university). FORA can and
should implement these measures. Because implementation of the regional
mitigation is currently disputed among the responsible agencies, mitigation of the
impact to a less than significant level cannot be assured by CSU. It is hereby
determined that any remaining unavoidable impacts are acceptable for the reasons
specified in the Statement of Overriding Considerations . . . .”
The Trustees’ finding about CSUMB’s effects on fire protection is similar.
11
Accordingly, to justify certifying the EIR and approving the Master Plan for
CSUMB, the Trustees have made alternative findings of the same type used to
address CSUMB’s effects on roads and fire protection. Specifically, the Trustees
have found that (1) the basewide infrastructure improvements proposed by FORA
constitute the specific measures necessary to mitigate CSUMB’s effects to the
level of insignificance, (2) the mitigation of CSUMB’s effects on drainage, water
supply, and wastewater management are FORA’s responsibility, and
(3) overriding circumstances justify certifying the EIR and approving the Master
Plan despite any remaining unmitigated effects.9
In an appendix to the EIR addressing public comments, the Trustees explain
why they have refused to contribute toward improvements in roads and fire
protection, and why they have agreed to contribute toward improvements in
drainage, water supply and wastewater management only through the procedure
established in chapter 13.7 of the Government Code (§ 54999 et seq.), even though
these decisions will leave some environmental effects unmitigated. Whether the
Trustees, in view of the unmitigated effects, properly exercised their discretion to
9
Here, in their own words, is the Trustees’ finding about CSUMB’s effects
on drainage: “The Board of Trustees finds that the specific measure to mitigate
this impact to a level of insignificance is to implement the planned regional FORA
drainage improvements, including ocean discharge improvements, and potential
offsite percolation areas as identified in the FORA Reuse Plan and accompanying
documents. CSUMB will contribute fees as mandated by applicable provisions of
Government Code Section 54999 to mitigate its share of the impact. Implementa-
tion of the planned regional improvements is FORA’s responsibility. It can and
should implement these measures. They are, in fact, included in FORA’s Reuse
Plan. Drainage is presently adequate for university operations. As noted, there are
current disputes regarding implementation of these measures; any remaining
unavoidable impacts are acceptable as a worst case because of the reasons
specified in the Statement of Overriding Considerations.”
The Trustees’ findings about water supply and wastewater management are
similar.
12
certify the EIR and to approve the Master Plan for CSUMB depends in large part
on whether they have correctly understood the nature and scope of their obligation
to contribute to FORA. We thus briefly summarize the relevant portion of the
appendix, which effectively defined the issues in the lower courts and anticipated
the Trustees’ arguments in the present proceeding.
CSUMB’s land, the Trustees observe in the appendix to the EIR, is exempt
from taxation as “[p]roperty owned by the State” under article XIII, section 3,
subdivision (a) of the California Constitution. This constitutional provision has
been interpreted as implicitly immunizing state-owned property from special
assessments imposed by local governments, except as authorized by the
Legislature. (San Marcos Water Dist. v. San Marcos Unified School Dist. (1986)
42 Cal.3d 154, 160-161 (San Marcos).) In reaction to San Marcos, the Legislature
passed a law (chapter 13.7 of the Government Code, beginning with section
54999) authorizing any public agency that provides public utility services to a
public educational agency to impose a “[c]apital facilities fee” on the latter “after
agreement has been reached between the two agencies through negotiations
entered into by both parties.” (Gov. Code, § 54999.3, subd. (b).) This law, which
addresses only fees intended to “pay the capital cost of a public utility facility”
(id., § 54999.1, subd. (b)), defines “ ‘[p]ublic utility facility’ ” for these purposes
as “a facility for the provision of water, light, heat, communications, power, or
garbage service, for flood control, drainage or sanitary purposes, or for sewage
collection, treatment, or disposal” (id., subd. (d)). The FORA Act, in turn,
provides that “[t]he applicability of any capital facilities fees imposed under this
title [i.e., the FORA Act] to public educational agencies shall be subject to the
provisions of Chapter 13.7 [of the Government Code] (commencing with section
54999) . . . .” (Gov. Code, § 67685.)
13
Based on these authorities, the Trustees conclude in the appendix that the
Legislature has in effect authorized FORA to impose fees on CSUMB for the
purposes mentioned in chapter 13.7 of the Government Code (e.g., water, drainage
and sewage; see id., § 54999.1, subd. (d)) but not for any other purposes not
mentioned (e.g., roads and fire protection). Any payment to FORA for a purpose
not mentioned in the section, the Trustees conclude, even a voluntary payment
made in order to mitigate CSUMB’s environmental effects, would amount to an
assessment prohibited by the state Constitution, as interpreted in San Marcos,
supra, 42 Cal.3d 154, and constitute a gift of public funds. Having thus concluded
that any contribution by CSUMB to mitigate the campus’s effects on roads and
fire protection would be unlawful, the Trustees further conclude that to mitigate
these effects is “infeasible,” presumably for “legal” reasons (see Pub. Resources
Code, § 21081, subd. (a)(3)), and thus not required by CEQA because, in the
Trustees’ view, overriding considerations justify proceeding with the project
despite the unmitigated effects (see id., § 21081, subd. (b)).
A lengthy statement of overriding considerations accompanies the Trustees’
findings certifying the EIR and approving the Master Plan for CSUMB. In the
statement, the Trustees reiterate the requirements of CEQA, the content of the
EIR, the principal features of the Master Plan for CSUMB, and favorable public
comments on the EIR. The following excerpts summarize some of the
considerations underlying the Trustees’ conclusion that campus expansion will
offer benefits that outweigh any remaining unmitigated effects on the
environment: “The CSU has identified the need for a university in the Monterey
Bay area that addresses the projected demand for postsecondary education in the
state of California by accommodating 25,000 [FTE students] at buildout. CSU
recognizes official projections of future increases in the number of students to be
served . . . which cannot be accommodated within [the] existing system capacity
14
of the CSU. The reuse of Fort Ord for this purpose is particularly advantageous to
the CSU because of the difficulty in acquiring campus-size parcels, the value of
existing development on the site, and the attractive location of the site in the
Monterey area. The master plan has been designed to provide an institution that
will effectively serve the mission of the CSU system.” In addition, development
of the campus will offer higher education to “historically underrepresented
populations and cultures of the state of California,” “foster economic revitalization
of a region impacted by closure of the largest residential military training facility
in the nation” and “create job opportunities for approximately 2,760 faculty and
staff as well as significant additional employment in university support activities.”
On May 13, 1998, the Trustees adopted resolutions approving the statement
of overriding considerations, certifying the EIR, and approving the Master Plan for
CSUMB. Thereafter, FORA and the City of Marina filed separate petitions for
writ of mandate challenging the Trustees’ actions. The petitions alleged, among
other things, that the Trustees had (1) failed to identify and adopt existing, feasible
measures to mitigate significant effects on the environment described in the EIR,
(2) improperly certified the EIR and approved the Master Plan despite the
availability of feasible mitigation measures, (3) improperly disclaimed
responsibility for mitigating CSUMB’s environmental effects, and (4) improperly
relied on a statement of overriding considerations to justify certifying the EIR and
approving the Master Plan.
The superior court granted the petitions, issued its writ of mandate directing
the Trustees to vacate their actions certifying the EIR and approving the Master
15
Plan, and to set aside the EIR’s statement of overriding considerations. A divided
Court of Appeal reversed. We granted FORA’s petition for review.10
II. DISCUSSION
The question before us is whether the Trustees have properly certified the
EIR for CSUMB and, on that basis, approved the Master Plan. FORA contends
the Trustees’ decision must be vacated because three findings critical to their
decision depend on an erroneous legal assumption, namely, that the California
Constitution precludes them from contributing to FORA, even for the purpose of
mitigating the environmental effects identified in the EIR, except as expressly
permitted by chapter 13.7 of the Government Code (§ 54999 et seq.). The first
two challenged findings are (1) that the Trustees cannot feasibly mitigate
CSUMB’s significant environmental effects and (2) that to mitigate CSUMB’s
effects is not the Trustees’ responsibility. These two findings have, in turn,
necessitated the third, which is (3) that overriding considerations justify certifying
the EIR and approving the Master Plan despite the remaining unmitigated effects.
(See generally Pub. Resources Code, § 21081.) We conclude FORA is correct and
that the Trustees have abused their discretion.
We review the Trustees’ decision, as CEQA directs, under the abuse of
discretion standard. (See Pub. Resources Code, § 21168.5.) For these purposes,
10
The Court of Appeal left undisturbed the superior court’s additional
conclusion that the Trustees had improperly failed to determine whether certain
commercial developments contemplated in the Master Plan for CSUMB, including
a retail mall, were consistent with FORA’s Reuse Plan. CSUMB is exempt from
land use regulation by FORA (including regulation under the Reuse Plan) only
with respect to property “that is used for educational or research purposes.” (Gov.
Code, § 67678, subd. (f).) Profits from the developments in question are expected
to generate as much as 30 percent of CSUMB’s budget.
16
“[a]buse 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.” (Ibid.) Although this standard would command much deference to
factual and environmental conclusions in the EIR based on conflicting evidence
(e.g., Laurel Heights Improvement Assn. v. Regents of University of California,
supra, 47 Cal.3d 376, 393, 409), no such conclusions are here at issue. At issue,
rather, are the Trustees’ findings that mitigation is infeasible and that mitigation is
not their responsibility. These findings depend on a disputed question of law—a
type of question we review de novo. De novo review of legal questions is
consistent with the abuse of discretion standard. In the context of review for abuse
of discretion, an agency’s “use of an erroneous legal standard constitutes a failure
to proceed in a manner required by law.” (No Oil, Inc. v. City of Los Angeles
(1974) 13 Cal.3d 68, 88; see also Save Our Peninsula Committee v. Monterey
County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 118 [“questions of
interpretation or application of the requirements of CEQA are matters of law”].)
De novo review of legal questions is also consistent with the principle that, in
CEQA cases, “ ‘[t]he court does not pass upon the correctness of the EIR’s
environmental conclusions, but only upon its sufficiency as an `informative
document.’ ” (Laurel Heights Improvement Assn. v. Regents of University of
California, supra, at p. 392, quoting County of Inyo v. City of Los Angeles (1977)
71 Cal.App.3d 185, 189.) An EIR that incorrectly disclaims the power and duty to
mitigate identified environmental effects based on erroneous legal assumptions is
not sufficient as an informative document.
17
A. Is Mitigation Infeasible?
1. Is mitigation infeasible because the Trustees may not lawfully
contribute to FORA?
We consider first the Trustees’ finding that they cannot feasibly mitigate the
environmental effects of their plan to expand the CSUMB campus. CEQA defines
“ ‘[f]easible’ ” for these purposes as “capable of being accomplished in a
successful manner within a reasonable period of time, taking into account
economic, environmental, social, and technological factors.” (Pub. Resources
Code, § 21061.1.) To this list, the CEQA Guidelines add “legal” factors. (CEQA
Guidelines, § 15364; see also Pub. Resources Code, § 21081, subd. (a)(3).) The
Trustees, by arguing the state Constitution prohibits them from voluntarily
contributing funds to FORA as a form of mitigation, in effect take the position that
such contributions are legally infeasible. We discuss here only the permissibility
of voluntary payments by the Trustees. Some of the public financing laws that
FORA has the power to invoke (see Gov. Code, § 67679, subd. (d)) would, as the
Trustees acknowledge, permit FORA to assess state-owned property such as the
CSUMB campus. FORA has not, however, attempted to impose an assessment.
The plain language of the California Constitution does not support the
Trustees’ position that voluntary mitigation payments are impermissible. The
provision on which the Trustees rely, article XIII, section 3, subdivision (a),
provides simply that “[p]roperty owned by the State” is “exempt from property
taxation . . . .” FORA has not imposed a tax on the Trustees. We have, however,
interpreted the same constitutional provision as implicitly exempting publicly
owned property from special assessments made without legislative authority.
(Inglewood v. County of Los Angeles (1929) 207 Cal. 697, 703-704; see also
Regents of University of California v. City of Los Angeles (1979) 100 Cal.App.3d
547, 549; County of Riverside v. Idyllwild County Water Dist. (1978) 84
18
Cal.App.3d 655, 659-660; cf. Regents of University of California v. City of Los
Angeles (1983) 148 Cal.App.3d 451, 454, fn. 2 [questioning whether the
exemption is grounded in policy considerations rather than the Constitution].)11
We reaffirmed this conclusion in San Marcos, supra, 42 Cal.3d 154, 160-161, the
case on which the Trustees principally rely. The Trustees, as noted, argue based
on San Marcos that any payment by themselves to FORA for the purpose of
improving Fort Ord’s infrastructure would constitute a special assessment
prohibited in the absence of legislative authority. The Trustees find in chapter
13.7 of the Government Code (§ 54999 et seq.) legislative authority for payments
related to subjects mentioned therein, such as water, drainage and sewage
collection (id., § 54999.1, subd. (d)), but not for any purpose not mentioned, such
as roads and fire protection.
The Trustees have misinterpreted San Marcos, supra, 42 Cal.3d 154. The
decision addresses only compulsory charges imposed by one public entity on
another. The case has nothing to say about a discretionary payment made by a
public agency that voluntarily chooses that method of discharging its duty under
CEQA to mitigate the environmental effects of its project. Because the Trustees’
interpretation of San Marcos critically underlies their position in this case, we
examine the decision and its consequences in detail.
At issue in San Marcos, supra, 42 Cal.3d 154, was the validity of a
“capacity fee” (id., at p. 157) imposed by a public water district on a public school
11
But see California Constitution, article XIII D, section 4: “Parcels within a
district that are owned or used by any agency, the State of California or the United
States shall not be exempt from assessment unless the agency can demonstrate by
clear and convincing evidence that those publicly owned parcels in fact receive no
special benefit.” (Added by initiative measure Prop. 218, § 4, approved by the
electorate Nov. 5, 1996.)
19
district. The specific question was whether the capacity fee was a user fee, which
the school district conceded it would have to pay, or a special assessment, from
which the school district was exempt under the cases cited above. The court held
the school district was exempt. The purpose of the fee was not to pay for water
service but to provide a source of funds for capital improvements to the water
system. (Id., at p. 159.) The capacity fee thus fit the definition of a special
assessment as “ ‘a compulsory charge placed by [the government] upon real
property within a pre-determined district, made under express legislative authority
for defraying in whole or in part the expense of a permanent public improvement
therein . . . .’ ” (San Marcos, at p. 161, quoting Spring Street Co. v. City of Los
Angeles (1915) 170 Cal. 24, 29.) In applying this definition, the court “look[ed] to
the purpose of the fee being charged, and not simply to the form of the fee, a
matter which can be easily manipulated.” (San Marcos, at p. 163.) Accordingly,
the court attributed no significance to the fact the water district had calculated the
charge by reference to the volume of water the school district anticipated using—a
characteristic typical of user fees. While the assessment’s form thus caused it to
resemble a user fee in some respects, the water district was not permitted “ ‘to do
indirectly that which it could not do directly.’ ” (Ibid., quoting County of
Riverside v. Idyllwild County Water Dist., supra, 84 Cal.App.3d 655, 659-660.)
In summary, the court in San Marcos, supra, 42 Cal.3d 154, announced two
holdings: the court reiterated the existing rule that publicly owned property was
exempt from special assessment absent “ ‘positive legislative authority therefor’ ”
(id., at p. 161, quoting Inglewood v. County of Los Angeles, supra, 207 Cal. 697,
704), and the court determined that the particular charge at issue was an
assessment rather than a user fee (San Marcos, at pp. 163-165). The court found
analogous support for its conclusions in prior decisions identifying “[t]he rationale
behind a public entity’s exemption from property taxes and special assessments
20
[as being] to prevent one tax-supported entity from siphoning tax money from
another such entity; the end result of such a process [possibly being] unnecessary
administrative costs and no actual gain in tax revenues.” (San Marcos, at p. 161,
citing Eisley v. Mohan (1948) 31 Cal.2d 637, 642.) The court also acknowledged,
perhaps bluntly, one of the more significant consequences of its holding: “Our
conclusion does not mean,” the court wrote, “that the water district cannot collect
money for capital improvements from its customers; it simply means that the
private customers will pay the entire cost of capital improvements. Public entities,
such as the school district, will not be required to allocate their limited tax
revenues to pay for capital improvements built by the sewer district.” (San
Marcos, at p. 158.)
The Legislature promptly reacted to the decision in San Marcos, supra, 42
Cal.3d 154, by authorizing public utilities to charge public-entity customers their
fair share of the utilities’ capital costs and by ratifying fees previously imposed for
that purpose. Under chapter 13.7 of the Government Code (§ 54999 et seq.),
enacted in response to San Marcos, “[a]ny public agency providing public utility
service” may impose on any public agency a “capital facilities fee” (id.,
§ 54999.2), meaning “any nondiscriminatory charge to pay the capital cost of a
public utility facility” (id., § 54999.1, subd. (b)). A “ ‘[p]ublic utility facility’ ”
for these purposes is “a facility for the provision of water, light, heat, communica-
tions, power, or garbage service, for flood control, drainage or sanitary purposes,
or for sewage collection, treatment, or disposal.” (Id., § 54999.1, subd. (d).)
Motivating these changes to the law was the Legislature’s perception that public
utilities and their public-entity customers, on the whole, had not shared the court’s
understanding of the law. “[M]any public entities that provide public utility
service,” the Legislature explained, “have imposed capital facilities fees applicable
to users of public utility facilities in order to equitably apportion the cost of capital
21
facilities construction or expansion required by all public and private users of the
facilities.” As a result of San Marcos, however, “the fiscal stability and service
capabilities of the affected public utility service agencies which have in good faith
collected and spent these fees for capital improvements are seriously impaired as
is the ability to finance essential future facilities.” (Gov. Code, § 54999,
subd. (a).)
Against this background, we may easily reject the Trustees’ argument that
they may not lawfully contribute to FORA as a way of discharging their obligation
under CEQA to mitigate the environmental effects of their project to expand
CSUMB. The Trustees’ three-part argument may be summarized as follows:
(1) Any payment by the Trustees to FORA for the purpose of capital improvement
in Fort Ord is an assessment, regardless of form; (2) public agencies are exempt
from assessment except as permitted by the Legislature; and (3) the Legislature
has permitted assessments only for the purposes set out in chapter 13.7 of the
Government Code (§ 54999 et seq.).
The Trustees err crucially at the outset. An assessment connotes, at the
very least, a compulsory charge imposed by the government on real property.
(Knox v. City of Orland (1992) 4 Cal.4th 132, 141; see also Southern Cal. Rapid
Transit Dist. v. Bolen (1992) 1 Cal.4th 654, 660; San Marcos, supra, 42 Cal.3d
154, 161; Spring Street Co. v. City of Los Angeles, supra, 170 Cal. 24, 29.) FORA
has imposed no charge on the Trustees, let alone a compulsory one. As part of its
planning process, FORA has made a provisional effort to estimate the Trustees’
fair share of the cost of infrastructure improvements, but FORA has taken no steps
to create an enforceable legal obligation to pay. Indeed, FORA disclaims any
intention to impose a charge on the Trustees and looks instead exclusively to a
negotiated payment. This case is not a collection action or an action to validate an
assessment. Instead, FORA claims the Trustees have abused their discretion under
22
CEQA by certifying an EIR that improperly fails to identify voluntary
contributions to FORA as a feasible method of mitigating the environmental
effects of their project to expand CSUMB.
In other words, the question of payment arises not because FORA has
imposed a charge (it has not), but because CEQA requires the Trustees to avoid or
mitigate, if feasible, the significant environmental effects of their project (Pub.
Resources Code, § 21002.1, subd. (b)) and because payments to FORA may
represent a feasible form of mitigation. To illustrate the point, if campus
expansion requires that roads or sewers be improved, the Trustees may do the
work themselves on campus, but they have no authority to build roads or sewers
off campus on land that belongs to others. Yet the Trustees are not thereby
excused from the duty to mitigate or avoid CSUMB’s off-campus effects on traffic
or wastewater management, because CEQA requires a public agency to mitigate or
avoid its projects’ significant effects not just on the agency’s own property but “on
the environment” (Pub. Resources Code, § 21002.1, subd. (b), italics added), with
“environment” defined for these purposes as “the physical conditions which exist
within the area which will be affected by a proposed project” (id., § 21060.5,
italics added). Thus, if the Trustees cannot adequately mitigate or avoid
CSUMB’s off-campus environmental effects by performing acts on campus (as by
reducing sufficiently the use of automobiles or the volume of sewage), then to pay
a third party such as FORA to perform the necessary acts off campus may well
represent a feasible alternative. A payment made under these circumstances can
properly be described neither as compulsory nor, for that reason, as an assessment.
Arguing to the contrary, the Trustees emphasize the court’s statement in
San Marcos, supra, 42 Cal.3d 154, 163, that courts will identify an assessment by
“look[ing] to the purpose of the fee being charged, and not simply to the form of
the fee, a matter which can be easily manipulated.” Based on this statement, the
23
Trustees argue that a voluntary payment made to fund projects that might also be
funded by an assessment, such as infrastructure projects, must be considered an
assessment for all purposes. The San Marcos court announced no such
conclusion. Instead, the court made the quoted statement in the context of
determining whether an admittedly compulsory charge was a user fee or an
assessment. Nothing in San Marcos speaks to voluntary payments or purports to
address or narrow any public agency’s duties under CEQA.
The Trustees also seek to draw support from the court’s statement in San
Marcos, supra, 42 Cal.3d 154, of the reason traditionally thought to underlie the
rule exempting public property from taxation, i.e., that the exemption “prevent[s]
one tax-supported entity from siphoning tax money from another such entity; the
end result of such a process [possibly being] unnecessary administrative costs and
no actual gain in tax revenues.” (Id., at p. 161.) Inviting an analogy, the Trustees
point out that any payment by CSU to FORA for infrastructure improvements will
reduce the amount of money available to CSU for its core educational functions.
The Trustees read too much into San Marcos. While there does exist a general
rule to the effect that “[p]roperty owned by the State” is exempt from taxation
(Cal. Const., art. XIII, § 3, subd. (a)), no rule precludes a public entity from
sharing with another the cost of improvements benefiting both. Furthermore,
while education may be CSU’s core function, to avoid or mitigate the
environmental effects of its projects is also one of CSU’s functions. This is the
plain import of CEQA, in which the Legislature has commanded that “[e]ach
public agency shall mitigate or avoid the significant effects on the environment of
projects that it carries out or approves whenever it is feasible to do so.” (Pub.
Resources Code, § 21002.1, subd. (b), italics added; see also id., § 21002
[declaring the same obligation to be “the policy of the state”].) Nothing in San
24
Marcos can fairly be read as addressing, much less narrowing, a public agency’s
obligations under CEQA.
The Trustees, as noted, are willing to contribute to FORA for the limited
purpose of mitigating CSUMB’s effects on drainage, water supply, and
wastewater management under the terms of chapter 13.7 of the Government Code
(§ 54999 et seq.). Chapter 13.7, as already explained, contains the law the
Legislature passed in the wake of San Marcos, supra, 42 Cal.3d 154, authorizing
public utilities to charge public-entity customers their fair share of the utilities’
capital costs. Under the law, “any public agency proposing to initially impose a
capital facilities fee . . . may do so after agreement has been reached between the
two agencies through negotiations entered into by both parties.” (Gov. Code,
§ 54999.3, subd. (b).) In such a case, “[t]he public agency imposing . . . the
capital facilities fee has the burden of producing evidence to establish that the
capital facilities fee is nondiscriminatory and that the amount of the capital
facilities fee does not exceed the amount necessary to provide capital facilities for
which the fee is charged.” (Id., subd. (c).) The FORA Act expressly invokes this
negotiative process by specifying that “[t]he applicability of any capital facilities
fees imposed under this title [i.e., the FORA Act] to public educational agencies
shall be subject to the provisions of Chapter 13.7 . . . .” (Gov. Code, § 67685.)
Because FORA has not imposed or sought to impose a capital facilities fee
on the Trustees, chapter 13.7 does not literally apply. That having been said, we
see no reason why an agreement between the Trustees and FORA regarding a
voluntary payment negotiated according to the procedure set out in chapter 13.7
for the purpose of mitigating specified environmental effects (i.e., water supply,
drainage and wastewater management) would not satisfy the Trustees’ CEQA
obligations as to those effects. While the amount determined by negotiation may
not equal the amount FORA originally projected, for its own planning purposes,
25
that the Trustees would pay, nothing in chapter 13.7 of the Government Code,
CEQA or the FORA Act permits FORA unilaterally to determine the amount of
any voluntary contribution the Trustees may choose to make as a way of satisfying
their obligation under CEQA to mitigate the environmental effects of their project.
To the contrary, the Trustees as the lead agency under CEQA have the power and
duty to assess the adequacy of mitigation measures, subject only to judicial review
for abuse of discretion. (See Laurel Heights Improvement Assn. v. Regents of
University of California, supra, 47 Cal.3d 376, 393.) Furthermore, nothing in
chapter 13.7 of the Government Code, CEQA or the FORA Act obliges the
Trustees to pay more than is necessary to mitigate CSUMB’s effects. Certainly
the Trustees need not pay to mitigate effects caused by other users of the base. To
the contrary, CEQA requires that mitigation measures “be ‘roughly proportional’
to the impacts of the project.” (CEQA Guidelines, § 15126.4, subd. (a)(4)(B),
citing Dolan v. City of Tigard (1994) 512 U.S. 374; cf. id., at p. 391.)12
Finally on this point, the Trustees argue that chapter 13.7 of the
Government Code (§ 54999 et seq.) and the FORA Act (id., § 67650 et seq.),
which specifically authorize FORA to impose on the Trustees a negotiated fee for
certain purposes (e.g., water supply, drainage and wastewater management),
suggest the Legislature must have contemplated the Trustees would have no
obligation to contribute to FORA for other purposes (e.g., the cost of improving
roads and fire protection). We discern in the cited provisions, however, no
evidence of a legislative intent to bar the Trustees from voluntarily contributing, as
12
Similarly, chapter 13.7 of the Government Code, although not here literally
applicable, requires that payments by a public agency to a public utility for capital
facilities be “nondiscriminatory” and that they “not exceed the amount necessary
to provide capital facilities for which the fee is charged.” (Gov. Code, § 54999.3,
subd. (c).)
26
a way of meeting their CEQA obligations, their fair share of the cost of
improvements to roads and fire protection necessitated by CSUMB’s expansion.
On this point the FORA Act, as noted, provides simply that “[t]he applicability of
any capital facilities fee imposed under this title to public educational agencies
shall be subject to the provisions of Chapter 13.7 [of the same code].” (Gov.
Code, § 67685, italics added.) Chapter 13.7, in turn, speaks only of fees
“impose[d]” (id., § 54999.3, subd. (b), italics added) by public utilities. Because
FORA has imposed no fee on the Trustees, neither Government Code section
67685 nor chapter 13.7 has any literal application to the present case. Moreover,
neither law purports to limit the Trustees’ independent obligation under CEQA to
protect the physical environment from the effects of their project to expand the
CSUMB campus.
2. Is mitigation infeasible because a contribution by the Trustees to
FORA would amount to a prohibited gift of public funds?
The Trustees next argue that any payment to FORA made otherwise than
under Government Code chapter 13.7 (§ 54999 et seq.) would constitute an illegal
gift of public funds. (See Cal. Const., art. XVI, § 6.) 13 The argument invokes the
court’s statement in San Marcos, supra, 42 Cal.3d 154, that the ability of the
school district in that case to “agree to pay [the disputed capacity] charge
depend[ed] upon whether the [water] district ha[d] the power to impose it,” and
that payment of an invalid charge “would amount to a ‘gift of public funds’ in
13
“[N]or shall [the Legislature] have power to make any gift or authorize the
making of any gift, of any public money or thing of value to any individual,
municipal or other corporation whatever . . . .” (Cal. Const., art. XVI, § 6.) We
have long assumed that this constitutional prohibition, applicable by its terms only
to the Legislature, also applies to public agencies. (E.g., Santa Barbara etc.
Agency v. All Persons (1957) 47 Cal.2d 699, 707.)
27
contravention of article XVI, section 6 of the California Constitution.” (San
Marcos, at p. 167, quoting County of Riverside v. Idyllwild County Water Dist.,
supra, 84 Cal.App.3d 655, 660.) We have, however, already rejected the central
premise of this argument, which is that a voluntary payment by the Trustees would
constitute an assessment.
In any event, the relevant law makes clear that a payment by the Trustees for
the purpose of mitigating CSUMB’s environmental effects would not constitute an
unlawful gift of public funds. “It is well settled that, in determining whether an
appropriation of public funds or property is to be considered a gift, the primary
question is whether the funds are to be used for a ‘public’ or a ‘private’ purpose.
If they are for a ‘public purpose’, they are not a gift within the meaning of [the
Constitution].” (County of Alameda v. Janssen (1940) 16 Cal.2d 276, 281.) Such
a payment by the Trustees would have the public purpose of discharging their duty
as a public agency, under the express terms of CEQA, to “mitigate or avoid the
significant effects on the environment of projects that [they] carr[y] out or
approve[] whenever it is feasible to do so.” (Pub. Resources Code, § 21002.1,
subd. (b).)
3. Is mitigation infeasible because the Trustees cannot guarantee that
FORA will actually implement the proposed infrastructure
improvements?
As a final reason why they cannot feasibly mitigate CSUMB’s environmental
effects by voluntarily contributing to FORA, the Trustees argue they cannot
guarantee that FORA will actually implement the infrastructure improvements
proposed in the Reuse Plan. The argument is not persuasive.
In certifying the EIR and approving CSUMB’s Master Plan, the Trustees
specifically found that the infrastructure improvements proposed by FORA
constitute the “specific measure[s]” necessary to mitigate each of CSUMB’s
28
corresponding environmental impacts to the level of insignificance. The Trustees
did not find that mitigation of these impacts was feasible, however, in part because
of asserted doubts about FORA’s ability to fund and implement the proposed
improvements. CEQA, as noted, defines a “ ‘[f]easible’ ” mitigation measure as
one that is “capable of being accomplished in a successful manner within a
reasonable period of time, taking into account economic, environmental, social,
and technological factors.” (Pub. Resources Code, § 21061.1; see also CEQA
Guidelines, § 15364.) Invoking this definition, the Trustees found in the EIR as to
each remaining environmental impact that “implementation of the regional
mitigation . . . is currently disputed, [and that] mitigation of the impact to a less
than significant level cannot be assured by CSU.”
The Trustees explained their position in more detail in response to public
comments on their EIR: “Although all parties to the MOA[14] will agree that the
determined contributions by CSUMB are intended to mitigate the offsite impacts
contributed by development of the Master Plan, it is acknowledged that CSUMB’s
contribution represents only a portion of the funding needed to implement the
regional improvements. Similar payments will need to be made by other
jurisdictions contributing to regional impacts in order for the improvements to be
implemented. In addition, ultimate implementation of the improvement program
is under the responsibility of FORA, and cannot be controlled or assured by the
University. For these reasons, . . . the [EIR] determine[s] that the significant
impacts on drainage, water supply, traffic, wastewater generation, and fire
14
That is, a Memorandum of Agreement proposed by the Trustees to
implement their proposal to contribute funds pursuant to chapter 13.7 of the
Government Code (§ 54999 et seq.) for improvements in water supply, drainage
and wastewater management.
29
protection, identified as caused by the Master Plan, will remain significant and
unavoidable. These impacts will therefore require the adoption of a Statement of
Overriding Conditions by the [Trustees] in compliance with CEQA.”
The presently identified, unavoidable uncertainties affecting the funding and
implementation of the infrastructure improvements FORA has proposed in its
Reuse Plan do not render voluntary contributions to FORA by the Trustees
infeasible as a method of mitigating CSUMB’s effects. Both the CEQA
Guidelines and judicial decisions recognize that a project proponent may satisfy its
duty to mitigate its own portion of a cumulative environmental impact by
contributing to a regional mitigation fund. Under the Guidelines, “a project’s
contribution to a significant cumulative impact” may properly be considered “less
than cumulatively considerable and thus . . . not significant” “if the project is
required to implement or fund its fair share of a mitigation measure or measures
designed to alleviate the cumulative impact.” (CEQA Guidelines, § 15130, subd.
(a)(3).) Similarly, courts have found fee-based mitigation programs for
cumulative impacts, based on fair-share infrastructure contributions by individual
projects, to constitute adequate mitigation measures under CEQA. (E.g.,
Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1188;
Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87
Cal.App.4th 99, 140.) 15
15
The Trustees assert that courts have not permitted public entities, as
opposed to private entities, to mitigate their projects’ contributions to cumulative
impacts by paying into regional mitigation funds. The single decision on which
the Trustees rely, however, is not on point. The court in Goleta Union School
Dist. v. Regents of University of California (1995) 37 Cal.App.4th 1025, held that
the Regents of the University of California had no obligation to propose, in an EIR
addressing a project to expand the University of California at Santa Barbara,
methods for alleviating overcrowding in local public schools expected to result
(footnote continued on next page)
30
“Of course a commitment to pay fees without any evidence that mitigation
will actually occur is inadequate.” (Save Our Peninsula Committee v. Monterey
County Bd. of Supervisors, supra, 87 Cal.App.4th 99, 140; see also Kings County
Farm Bureau v. City of Hanford (1990) 221 Cal. App.3d 692, 727-728 [lacking
evidence water would be available for purchase, an agreement to purchase
replacement water did not adequately mitigate groundwater depletion].) There is,
however, no reason to doubt that FORA will meet its statutory obligation as the
government of Fort Ord to prepare the base for civilian development by
constructing whatever public capital facilities are necessary for that purpose. (See
Gov. Code, § 67679.) As noted, FORA plans to implement the improvements
over a period of several years, as increasing land use necessitates them and as
funding becomes available. To enable this task to be accomplished, the
Legislature has given FORA a broad array of fundraising powers, including the
power to levy assessments and development fees, to share tax revenue with its
local-government member agencies, and to sell and lease property. (See Gov.
Code, §§ 67678, subd. (a), 67679, subds. (c)-(e), 67691, 67692.) Furthermore, the
law specifically directs FORA to use its powers to ensure the success of its
statutory mission (e.g., Gov. Code, § 67679, subd. (a)(1) [FORA must “undertake
to plan for and arrange the provision of [public capital] facilities, including
(footnote continued from previous page)
from the project. The basis for the court’s holding was that CEQA requires
consideration only of “physical change[s]” in the environment (Pub. Resources
Code, § 21065; cf. id., § 21060.5), and that the “[e]conomic or social effects of a
project shall not be treated as significant effects on the environment” (CEQA
Guidelines, § 15131, subd. (a)). (See Goleta Union School Dist. v. Regents of
University of California, supra, at pp. 1030-1033.)
31
arranging for their financing and construction”]), and the courts ordinarily
presume that the government, in this instance FORA, will comply with the law
(e.g., City of Beaumont v. Beaumont Irr. Dist. (1965) 63 Cal.2d 291, 297; Save
Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87
Cal.App.4th 99, 141).
By way of analogy, the court in Save Our Peninsula Committee v. Monterey
Bd. of Supervisors, supra, 87 Cal.App.4th 99, held that a county had adequately
ensured the mitigation of traffic congestion effects by “provid[ing] for
improvements to be constructed as the traffic triggering the need for the
improvements exceeded a projected threshold and the funds to pay for the
improvements were generated by the new development.” (Id., at p. 141.) CEQA,
the court explained, required not “a time-specific schedule for the County to
complete specified road improvements” (ibid.) but only “that there be a reasonable
plan for mitigation” (ibid.). FORA’s Reuse Plan satisfies that criterion. The
Trustees’ assumption that CEQA requires more is an error of law invalidating their
finding that voluntary mitigation payments to FORA do not represent a feasible
method of mitigating CSU’s off-campus environmental effects. (No Oil, Inc. v.
City of Los Angeles, supra, 13 Cal.3d 68, 88 [an agency’s “use of an erroneous
legal standard constitutes a failure to proceed in a manner required by law”]; see
also Save Our Peninsula Committee v. Monterey County Bd. of Supervisors,
supra, 87 Cal.App.4th 99, 118 [“questions of interpretation or application of the
requirements of CEQA are matters of law”].)
B. Is Mitigation Exclusively the Responsibility of FORA?
CEQA, as previously noted, does not require a public agency to undertake
identified mitigation measures, even if those measures are necessary to address the
project’s significant environmental effects, if the agency finds that the measures
32
“are within the responsibility and jurisdiction of another public agency and have
been, or can and should be, adopted by that other agency.” (Pub. Resources Code,
§ 21081, subd. (a)(2).) The Trustees have made such a finding with respect to the
measures necessary to mitigate CSUMB’s projected effects on drainage, water
supply, wastewater management, traffic, and fire protection. As to each such
effect, the Trustees have found that “the specific measure to mitigate [each]
impact to a level of insignificance is to implement the planned regional FORA
. . . improvements,” and that “[i]mplementation of the planned regional
improvements is FORA’s responsibility.”
Certainly FORA has responsibility for implementing the infrastructure
improvements it has proposed. (See Gov. Code, § 67679.) Just as certainly,
however, the FORA Act contemplates that the costs of those improvements will be
borne by those who benefit from them. (See ibid.) A finding by a lead agency
under Public Resources Code section 21081, subdivision (a)(2), disclaiming the
responsibility to mitigate environmental effects is permissible only when the other
agency said to have responsibility has exclusive responsibility. As the CEQA
Guidelines explain, “[t]he finding in subsection (a)(2) shall not be made if the
agency making the finding has concurrent jurisdiction with another agency to deal
with identified feasible mitigation measures or alternatives.” (CEQA Guidelines,
§ 15091, subd. (c).) The Guidelines’ logical interpretation of CEQA on this point
“avoids the problem of agencies deferring to each other, with the result that no
agency deals with the problem. This result would be contrary to the strong policy
[requiring the mitigation or avoidance of significant environmental effects]
declared in Sections 21002 and 21002.1 of the statute.” (Discussion of Resources
Agency following CEQA Guidelines, § 15091; see also 1 Kostka, Practice Under
the Cal. Environmental Quality Act (Cont.Ed.Bar 2005) § 17.19, pp. 821-823.)
33
The Trustees offer two arguments in support of their finding disclaiming
responsibility for the measures necessary to mitigate CSUMB’s off-campus
environmental effects. Neither withstands close scrutiny. The Trustees’ first
argument—that they may not lawfully contribute to FORA in view of San Marcos,
supra, 42 Cal.3d 154, and the constitutional exemption of state property from
taxation (Cal. Const., art. XIII, § 3, subd. (a))—has already been considered and
rejected. The Trustees’ second argument—that they lack the power to construct
infrastructure improvements away from campus on land they do not own and
control—is beside the point. Certainly the Trustees may not enter the land of
others to widen roads and lay sewer pipe; CEQA gives the Trustees no such
power. (See Pub. Resources Code, § 21004 [“[i]n mitigating or avoiding a
significant effect of a project on the environment, a public agency may exercise
only those express or implied powers provided by law other than this division.”].)
CEQA does not, however, as we have explained, limit a public agency’s
obligation to mitigate or avoid significant environmental effects to effects
occurring on the agency’s own property. (See Pub. Resources Code, §§ 21002.1,
subd. (b), 21060.5.) CEQA also provides that “[a]ll state agencies . . . shall
request in their budgets the funds necessary to protect the environment in relation
to problems caused by their activities.” (Id., § 21106.) Thus, as we have also
explained, if the Trustees cannot adequately mitigate or avoid CSUMB’s off-
campus environmental effects by performing acts on the campus, then to pay a
third party such as FORA to perform the necessary acts off campus may well
represent a feasible alternative.
To be clear, we do not hold that the duty of a public agency to mitigate or
avoid significant environmental effects (Pub. Resources Code, § 21002.1, subd.
34
(b)), combined with the duty to ask the Legislature for money to do so (id.,
§ 21106),16 will always give a public agency that is undertaking a project with
environmental effects shared responsibility for mitigation measures another
agency must implement. Some mitigation measures cannot be purchased, such as
permits that another agency has the sole discretion to grant or refuse. Moreover, 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. For the same reason, however,
for the Trustees to disclaim responsibility for making such payments before they
have complied with their statutory obligation to ask the Legislature for the
necessary funds is premature, at the very least. The superior court found no
evidence the Trustees had asked the Legislature for the funds. In their brief to this
court, the Trustees acknowledge they did not budget for payments they assumed
would constitute invalid assessments under San Marcos, supra, 42 Cal.3d 154.
That assumption, as we have explained, is invalid.
C. Do Overriding Circumstances Justify Approving the Campus
Master Plan?
When a public agency has found that a project’s significant environmental
effects cannot feasibly be mitigated, the agency may nevertheless proceed with the
project if it also finds “that specific overriding economic, legal, social, technologi-
cal, or other benefits of the project outweigh the significant effects on the environ-
ment.” (Pub. Resources Code, § 21081, subd. (b).) The Trustees, as noted, have
made such a finding with respect to each of the remaining, unmitigated environ-
16
“All state agencies, boards, and commissions shall request in their budgets
the funds necessary to protect the environment in relation to problems caused by
their activities.” (Pub. Resources Code, § 21106.)
35
mental impacts on drainage, water supply, wastewater management, traffic and
fire protection.
If we agreed with the Trustees that mitigation were infeasible for the reasons
given in the findings, i.e., that the Trustees may not legally contribute to FORA
and that the Trustees cannot ensure that FORA will actually construct infrastruc-
ture improvements—we would give much deference to the Trustees’ weighing of
the project’s benefits against the remaining environmental effects. Generally
speaking, “a court’s proper role in reviewing a challenged EIR is not to determine
whether the EIR’s ultimate conclusions are correct but only whether they are
supported by substantial evidence and whether the EIR is sufficient as an
informational document.” (Laurel Heights Improvement Assn. v. Regents of
University of California, supra, 47 Cal.3d 376, 407.) Moreover, an agency’s
decision that the specific benefits a project offers outweigh any environmental
effects that cannot feasibly be mitigated, while subject to review for abuse of
discretion (Pub. Resources Code, § 21168.5), lies at the core of the lead agency’s
discretionary responsibility under CEQA and is, for that reason, not lightly to be
overturned. (Cf. Laurel Heights Improvement Assn. v. Regents of University of
California, supra, 47 Cal.3d 376, 392 [court reviews the EIR’s sufficiency as an
informative document and not the correctness of its environmental conclusions].)
In this case, however, the Trustee’s statement of overriding considerations is
invalid for a reason that does not require us to reweigh benefits and detriments, or
to inquire into the statement’s factual basis. A statement of overriding considera-
tions is required, and offers a proper basis for approving a project despite the
existence of unmitigated environmental effects, only when the measures necessary
to mitigate or avoid those effects have properly been found to be infeasible. (Pub.
Resources Code, § 21081, subd. (b).) Given our conclusion the Trustees have
abused their discretion in determining that CSUMB’s remaining effects cannot
36
feasibly be mitigated, that the Trustees’ statement of overriding circumstances is
invalid necessarily follows. CEQA does not authorize an agency to proceed with a
project that will have significant, unmitigated effects on the environment, based
simply on a weighing of those effects against the project’s benefits, unless the
measures necessary to mitigate those effects are truly infeasible. Such a rule, even
were it not wholly inconsistent with the relevant statute (id., § 21081, subd. (b)),
would tend to displace the fundamental obligation of “[e]ach public agency [to]
mitigate or avoid the significant effects on the environment of projects that it
carries out or approves whenever it is feasible to do so” (id., § 21002.1, subd. (b)).
This conclusion does not, however, preclude the Trustees from including in a
revised EIR a statement of overriding considerations regarding environmental
effects as to which they have properly found mitigation to be infeasible for reasons
other than those we have rejected.
III. CONCLUSION
From the foregoing discussion it follows that the Trustees must be directed to
vacate their actions certifying the EIR and approving the Master Plan and set aside
the EIR’s statement of overriding circumstances. The superior court’s writ of
mandate does order such relief. The writ is, however, incorrect in one respect. In
describing the principles that would apply should the Trustees decide to make
voluntary mitigation payments to FORA, the court wrote that “CSUMB’s
proportional share of the cumulative impacts on public capital facilities in the
region necessary to mitigate the significant adverse environmental impacts of the
CMP shall be determined by [FORA] . . . .” (Italics added.) To the contrary,
having chosen not to assess the campus but instead to rely on the Trustees to
comply with their CEQA obligation to mitigate or avoid the environmental effects
of their project, FORA has no power to dictate the manner in which the Trustees
exercise their discretion. Neither do the remedial provisions of CEQA “authorize
37
a court to direct any public agency to exercise its discretion in any particular way.”
(Pub. Resources Code, § 21168.9, subd. (c).) CEQA requires only that any
mitigation measures the Trustees adopt be adequate. If FORA wishes to compel
the Trustees to contribute a specific amount to infrastructure improvement
projects, FORA is free to proceed by exercising the powers specifically granted in
the FORA Act (e.g., Gov. Code, § 67679, subd. (d)), and in the public financing
statutes to which the act refers (ibid.), to impose a formal assessment on the
CSUMB campus, complying of course with the procedural requirements set out in
those statutes and in the California Constitution (e.g., art. XIII D, § 1 et seq.).
IV. DISPOSITION
The judgment of the Court of Appeals is reversed and the cause remanded to
that court with directions to order the superior court to vacate its writ of mandate
and to issue a new writ consistent with the views set forth in this opinion.
WERDEGAR, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
MORENO, J.
CORRIGAN, J.
38
CONCURRING OPINION BY CHIN, J.
I concur in the judgment and in most of the majority opinion’s reasoning. I
write separately to explain my reasons for agreeing that the Board of Trustees of
the California State University (Trustees) may not rely on Public Resources Code
section 21081, subdivision (a)(2),1 and to express concern about the majority’s
discussion of this issue.
Under the California Environmental Quality Act (CEQA) (§ 21000 et seq.),
when a certified environmental impact report identifies significant environmental
effects of a proposed project, section 21081, subdivision (a)(2), permits a public
agency to approve or carry out the project if it finds that “changes or alterations”
in the project that would mitigate or avoid the identified environmental effects
“are within the responsibility and jurisdiction of another public agency and have
been, or can and should be, adopted by that other agency.” The Trustees, who
made such a finding here, argue that this provision applies because, under the Fort
Ord Reuse Authority Act (Gov. Code, § 67650 et seq.) (FORA Act), the Fort Ord
Reuse Authority (FORA) has “exclusive authority to plan and construct off-
campus local infrastructure improvements” and “the University lacks
jurisdiction . . . to build off-site improvements.”
1
All further unlabeled statutory references are to the Public Resources Code.
1
In my view, the Trustees err by focusing on the wrong question: Whether
the Trustees, acting for the California State University (CSU), have any
responsibility and jurisdiction regarding actual construction of the necessary off-
campus infrastructure improvements. The particular mitigation measure at issue
here—i.e., the proposed “change[] or alteration[]” in the project to mitigate or
avoid the identified environmental effects (§ 21081, subd. (a)(2))—is not actual
construction of the improvements, but is payment to FORA to help fund the
improvements FORA intends to construct. Thus, the relevant question here in
applying section 21081, subdivision (a)(2), is not, as the Trustees argue, whether
they have jurisdiction actually “to build off-site improvements,” but is whether
they have any responsibility and jurisdiction to help fund FORA’s construction of
those improvements.
Based on provisions of the FORA Act and the Education Code, I conclude
that the Trustees have such responsibility and jurisdiction. Regarding the former,
the FORA Act declares the “financing . . . of the reuse of Fort Ord” to be “a matter
of statewide importance.” (Gov. Code, § 67657, subd. (c).) It provides that
FORA’s Fort Ord reuse plan “shall be the official local plan for the reuse of the
base for all public purposes, including . . . funding by all state agencies.” (Gov.
Code, § 67675, subd. (a), italics added.) It directs FORA to “arrang[e] for the[]
financing” of—not to finance itself —“basewide public capital facilities” such as
“roads.” (Id., § 67679, subd. (a)(1).) It also authorizes FORA to “seek state and
federal grants and loans or other assistance to help fund public facilities” (id., §
67679, subd. (c)), and to “enter into contracts and agreements as necessary to
mitigate impacts of the reuse of Fort Ord.” (Id., §67680.5.) These provisions
demonstrate the Legislature’s intent that funding of the necessary infrastructure
improvements not be solely FORA’s responsibility, and that funding be provided,
at least in part, by other public agencies.
2
Several provisions of the Education Code also are relevant to the Trustees’
responsibility and jurisdiction. The Education Code declares generally that “[t]he
mission of the public segments of higher education . . . include[s] a broad
responsibility to the public interest.” (Ed. Code, § 66010.5.) Of course, payments
to FORA to help mitigate significant environmental impacts of the expansion
project here at issue would serve the public interest. The Education Code also
declares “the intent of the Governor and the Legislature, in cooperation with the
Trustees,” to “[p]lace a major priority on resolving the serious problem of
impacted and overcrowded classes, not only with respect to the [CSU], but
throughout public postsecondary education.” (Id., § 66015, subd. (a).) Consistent
with this declared priority, the Education Code imposes on the CSU a duty “to
plan that adequate spaces are available to accommodate all California resident
students who are eligible and likely to apply to attend an appropriate place within
the system.” (Id., § 66202.5.) It also grants the Trustees “full power and
responsibility in the construction and development of any state university campus,
and any buildings or other facilities or improvements connected with the [CSU].”
(Id., § 66606.) Finally, it directs the Trustees to “expend all money appropriated
for the support and maintenance of the [CSU]” (id., § 89750), and authorizes them
to “enter into agreements with any public or private agency, officer, person, or
institution, corporation, association, or foundation for the performance of acts or
for the furnishing of services, facilities, materials, goods, supplies, or equipment
by or for the trustees or for the joint performance of an act or function or the joint
furnishing of services and facilities by the trustees and the other party to the
agreement.” (Id., § 89036, subd. (a).) Based on these provisions, I have no
trouble concluding that the Trustees have both responsibility and jurisdiction
within the meaning of Public Resources Code section 21081, subdivision (a)(2), to
contribute to the cost of off-site infrastructure improvements needed to mitigate
3
significant environmental impacts of an expansion project designed, in part, to
address the statutorily declared “priority on resolving the serious problem of
impacted and overcrowded classes, not only with respect to the [CSU], but
throughout public postsecondary education.”2 (Ed. Code, § 66015, subd. (a).)
I do not join the majority’s analysis of this issue insofar as it relies on
several CEQA provisions to find that the Trustees have jurisdiction and
responsibility within the meaning of section 21081, subdivision (a)(2). (Maj. opn.,
ante, at pp. 34-35.) The majority cites section 21002.1, subdivision (b), which
requires “[e]ach public agency [to] mitigate or avoid the significant effects on the
environment of projects that it carries out or approves whenever it is feasible to do
so,” and section 21106, which requires “[a]ll state agencies . . . [to] request in
their budgets the funds necessary to protect the environment in relation to
problems caused by their activities.” (Maj. opn., ante, at pp. 34-35.) Because
these two CEQA statutes apply to every state agency, the majority’s analysis
substantially limits the circumstances under which a state agency may invoke
section 21081, subdivision (a)(2). It is unclear to me the Legislature intended
section 21081, subdivision (a)(2), to be read so narrowly. Because my analysis
depends on non-CEQA provisions, I need not, and do not, address that question.
I also do not join the majority’s analysis insofar as it appears to suggest that
a public agency lacks jurisdiction and responsibility within the meaning of section
21081, subdivision (a)(2), when “the Legislature does not appropriate” money
requested to pay for mitigation measures. (Maj. opn., ante, at pp. 34-35.) To
begin with, the discussion is dictum. As the majority notes, there is no evidence
2
As the majority notes, the Trustees cited this problem in a statement of
overriding considerations to justify their approval of the project despite
unmitigated environmental effects. (Maj. opn., ante, at pp. 14-15.)
4
here the Trustees have even asked the Legislature for the necessary funds. (Maj.
opn., ante, at p. 35.) Thus, it is both unnecessary and premature to express an
opinion about whether the Legislature’s denial of a funding request would affect
the Trustees’ jurisdiction and responsibility for purposes of applying section
21081, subdivision (a)(2).
The other reason I do not join the majority’s dictum is that I question its
soundness. It is not clear to me that, for purposes of applying section 21081,
subdivision (a)(2), a public agency has no responsibility or jurisdiction for a
mitigation measure simply because the Legislature denies a specific request for
money to pay for that mitigation measure. Here, for example, even were the
Legislature to reject such a request, arguably, the Trustees would still have
responsibility and jurisdiction to contribute to FORA with money from the CSU’s
general operating fund. Moreover, the Legislature has expressly authorized the
Trustees, at their discretion and “without the prior approval of any other state
department or agency,” to “sell improvements located on the land at the . . .
Monterey Bay campus that was transferred” from the federal government (Ed.
Code, § 89010, subd. (a)) and to use proceeds from those sales “for the purposes
of building, maintaining, and funding a campus . . . at Monterey Bay through
expenditures for improvements to the campus . . . .” (Id., § 89010, subd. (b).)
Arguably, by virtue of these provisions, even were the Trustees to make, and the
Legislature to reject, a specific appropriation request regarding the off-campus
improvements here at issue, the Trustees would have “the power” to make
contributions to FORA for those improvements (maj. opn., ante, at p. 35) and
would have jurisdiction and responsibility within the meaning of Public Resources
Code section 21081, subdivision (a)(2), to make such contributions. Because of
these substantive doubts, because we need not decide the question here, and
5
because we have no briefing on the question, I decline to join the majority’s
dictum.
CHIN, J.
6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion City of Marina v. Board of Trustees of California State University
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 109 Cal.App.4th 1179
Rehearing Granted
__________________________________________________________________________________
Opinion No. S117816
Date Filed: July 31, 2006
__________________________________________________________________________________
Court: Superior
County: Monterey
Judge: Richard M. Silver
__________________________________________________________________________________
Attorneys for Appellant:
Horvitz & Levy, John A. Taylor, Jr., Patricia Lofton; Miller, Starr & Regalia, Basil S. Shiber and Christian
M. Carrigan for Defendant and Appellant.
James E. Holst, Alan C. Waltner and Jeffrey A. Blair for The Regents of the University of California as
Amicus Curiae on behalf of Defendant and Appellant.
Miller Brown & Dannis, Marilyn J. Cleveland, Chad J. Graff and Kenneth S. Levy for Coalition for
Adequate School Housing as Amicus Curiae on behalf of Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Lombardo & Gilles, Sheri L. Damon; Law Offices of Robert Wellington, Kenneth D. Buchert; Law Offices
of Mary L. Hudson, and Mary L. Hudson for Plaintiffs and Respondents.
Manuela Albuquerque, City Attorney (Berkeley) and Zach Cowan, Assistant City Attorney, for League of
California Cities and California State Association of Counties as Amici Curiae on behalf of Plaintiffs and
Respondents.
McDonough Holland & Allen, Harriet A. Steiner and Kara K. Ueda for City of Davis as Amicus Curiae on
behalf of Plaintiffs and Respondents.
Law Offices of Donald B. Mooney, Donald B Mooney; Law Offices of Marsha A. Burch and Marsha A.
Burch for San Joaquin Raptor Rescue Center, Protect Our Water and Central Valley Safe Environmental
Network as Amici Curiae on behalf of Plaintiffs and Respondents.
Norma Turner, Mary-Alice Coleman and Jeffrey A. Diamond for West Davis Neighbors as Amicus Curiae
on behalf of Plaintiffs and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Patricia Lofton
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436
(818) 995-0800
Mary L. Hudson
Law Offices of Mary L. Hudson
1505 Bridgeway, Suite 206
Sausalito, CA 94965
(415) 331-7712
Opinion Information
| Date: | Docket Number: |
| Mon, 07/31/2006 | S117816 |
Parties
| 1 | Fort Ord Reuse Authority (Plaintiff and Respondent) Represented by Mary L. Hudson Law Offices of Mary L. Hudson 1505 Bridgeway, Suite 206 Sausalito, CA |
| 2 | Fort Ord Reuse Authority (Plaintiff and Respondent) Represented by Sheri Lynn Damon Lombardo & Gilles, PLC 318 Cayuga Street Salinas, CA |
| 3 | City Of Marina (Plaintiff and Respondent) Represented by Kenneth Dale Buchert Law Office of Robert R. Wellington 857 Cass Street, Suite D Monterey, CA |
| 4 | Board Of Trustees Of The California State University (Defendant and Appellant) Represented by John A. Taylor Horvitz & Levy, LLP 15760 Ventura Boulevard, 18th Floor Encino, CA |
| 5 | Board Of Trustees Of The California State University (Defendant and Appellant) Represented by Basil S. Shiber Miller Starr & Regalia P.O. Box 8177 Walnut Creek, CA |
| 6 | Regents Of The University Of California (Amicus curiae) Represented by Alan C. Waltner Office of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA |
| 7 | City Of Davis (Amicus curiae) Represented by Kara K. Ueda McDonough Holland & Allan 555 Capitol Mall, 9th Floor Sacramento, CA |
| 8 | League Of California Cities (Amicus curiae) Represented by Zachary D. Cowan Office of the City Attorney 2180 Milvia Street, 4th Floor Berkeley, CA |
| 9 | Coalition For Adequate School Housing (Amicus curiae) Represented by Marilyn J. Cleveland Miller Brown & Dannis 71 Stevenson Street, 19th Floor San Francisco, CA |
| 10 | San Joaquin Raptor Rescue (Amicus curiae) Represented by Donald B. Mooney Attorney at Law 129 "C" Street, Suite 2 Davis, CA |
| 11 | Protect Our Water (Amicus curiae) Represented by Donald B. Mooney Attorney at Law 129 "C" Street, Suite 2 Davis, CA |
| 12 | Central Valley Safe Environmental Networks (Amicus curiae) Represented by Marsha Ann Burch Law Offices of Masha A. Burch 11300 Pleasant Valley Road, Suite 5 Penn Valley, CA |
| 13 | West Davis Neighbors (Amicus curiae) Represented by Mary-Alice Coleman Attorney at Law 506 Fillmore Court Davis, CA |
| 14 | California State Association Of Counties (Amicus curiae) Represented by Zachary D. Cowan Office of the City Attorney 2180 Milvia Street, 4th Floor Berkeley, CA |
| Disposition | |
| Jul 31 2006 | Opinion: Reversed |
| Dockets | |
| Jul 29 2003 | Received: petition for review from resp Fort Ord Reuse Authority. (did not contain proper cert. of word count, counsel is sending it) |
| Jul 29 2003 | Petition for review filed by counsel for resp Fort Ord Reuse Authority (word count cert rec'd) |
| Aug 4 2003 | Received Court of Appeal record 1 envelope and briefs. |
| Aug 19 2003 | Answer to petition for review filed by counsel for appellant (Board of Trustees of the California State University). (timely per rule 40k) |
| Sep 18 2003 | Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including October 27, 2003, or the date upon which review is either granted or denied. |
| Oct 1 2003 | Petition for Review Granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Oct 6 2003 | Record requested requested balance of record. |
| Oct 7 2003 | Received Court of Appeal record balance of record. |
| Oct 14 2003 | Certification of interested entities or persons filed By counsel for Respondent {Fort Ord Reuse Authority}. |
| Oct 15 2003 | Request for extension of time filed by respondent (Fort Ord Reuse Authority) requesting to Dec. 15, 2003 to file opening brief on the merits. |
| Oct 17 2003 | Certification of interested entities or persons filed by counsel for appellant (Board of Trustees of the Calif. State University). |
| Oct 20 2003 | Extension of time granted On application of respondent (Fort Ord Reuse Authority) and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including Dec. 15, 2003. No further extensions are contemplated. |
| Dec 15 2003 | Request for extension of time filed respondent requesting to Dec. 29, 2003 to file opening brief on the merits. (Recv'd fax from attorney Susan M. Popik on behalf of attorney Mary L. Hudson, counsel for respondent.) |
| Dec 17 2003 | Extension of time granted On application submitted by Susan Popik on behalf of counsel for respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including December 29, 2003. |
| Dec 30 2003 | Opening brief on the merits filed by counsel for respondent (Fort Ord Reuse Authority). (40k) |
| Jan 5 2004 | Received: Errata notice from counsel for respondent regarding opening brief on the merits filed 12/30/03. Provided page 50 that was missing from brief. |
| Jan 22 2004 | Request for extension of time filed by counsel for appellant requesting a 30 day extension to file the answer brief on the merits. |
| Jan 26 2004 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including March 1, 2004. |
| Jan 27 2004 | Received Court of Appeal record two boxes |
| Feb 17 2004 | Filed: application for leave to file answer brief on the merits in excess of 14000 words - from appellant. |
| Feb 17 2004 | Answer brief on the merits filed with permission by counsel for appellant (Board of Trustees of the Calif. State University. |
| Mar 9 2004 | Reply brief filed (case fully briefed) with permission by counsel for respondent. (tan covers - should be white) (40k) |
| Apr 6 2004 | Received application to file Amicus Curiae Brief from the Regents of the University of California in support of appellant |
| Apr 7 2004 | Received application to file Amicus Curiae Brief City of Davis in support of Respondents. |
| Apr 7 2004 | Request for extension of time to file amicus curiae brief by The Coalition for Adequate School Housing ("CASH") requesting a 20-day extension. |
| Apr 7 2004 | Received application to file Amicus Curiae Brief by League of California Cities and the California State Association of Counties in support of respondent Fort Ord Reuse Authority. |
| Apr 8 2004 | Received application to file Amicus Curiae Brief by West Davis Neighbors in support of respondents City of Marina and Fort Ord Reuse Authority. |
| Apr 8 2004 | Received application to file Amicus Curiae Brief by San Joaquin Raptor Rescue Center, Protect Our Water, and Central Valley Safe Environmental Network in support of respondent Fort Ord Reuse Authority. |
| Apr 12 2004 | Permission to file amicus curiae brief granted The Regents of the University of California in support of appellant. |
| Apr 12 2004 | Amicus curiae brief filed The Regents of the University of California in support of appellant. Answer is due within twenty days. |
| Apr 12 2004 | Permission to file amicus curiae brief granted City of Davis in support of Respondent {Fort Ord Reuse Authority}. |
| Apr 12 2004 | Amicus curiae brief filed City of Davis in support of respondent {Fort Ord Reuse Authority}. Answer is due within twenty days. |
| Apr 12 2004 | Permission to file amicus curiae brief granted League of California Cities and California State Association of Counties in support of Respondent {Fort Ord Reuse Authority}. |
| Apr 12 2004 | Amicus curiae brief filed League of California Cities and California State Association of Counties in support of Respondent {Fort Ord Reuse Authority}. Answer is within twenty days. |
| Apr 12 2004 | Extension of time granted To April 28, 2004 to file application and amicus brief of Coalition for Adequate School Housing. |
| Apr 12 2004 | Permission to file amicus curiae brief granted San Joaquin Raptor Rescue Center, Protect Our Water and Central Valley Safe Environmental Network in support of respondent {Fort Ord Reuse Authority}. |
| Apr 12 2004 | Amicus curiae brief filed San Joaquin Raptor Rescue Center, Protect Our Water and Central Valley Safe Environmental Network in support of respondent {Fort Ord Reuse Authority}. Answer is due within twenty days. |
| Apr 13 2004 | Opposition filed By Respondent Fort Ord Reuse Authority to request for extension of time filed by Adequate School Housing. |
| Apr 13 2004 | Permission to file amicus curiae brief granted West Davis Neighbors in support of Respondents. |
| Apr 13 2004 | Amicus curiae brief filed West Davis Neighbors in support of Respondents. Answer is due within twenty days. |
| Apr 19 2004 | Filed: JOINT Application of ( Applt. Bd. of Trustees and Resp. Fort Ord.) for extension of time to May 18, 2004, to file one consolidated answer to amicus curiae briefs. |
| Apr 21 2004 | Request for extension of time filed |
| Apr 26 2004 | Extension of time granted for Appellant and Respondents to serve and file one consolidated Answer to Amicus Curiae briefs to May 18, 2004. |
| Apr 29 2004 | Received application to file Amicus Curiae Brief Coalition for Adequate School Housing. |
| May 3 2004 | Permission to file amicus curiae brief granted The Coalition For Adequate School Housing. Answer due within 20 days. |
| May 3 2004 | Amicus curiae brief filed The Coalition for Adequate School Housing in support of Appellant. Answer due within in 20 days. |
| May 18 2004 | Response to amicus curiae brief filed By appellant {Board of Trustees of the California State University} to AC Briefs. |
| May 19 2004 | Response to amicus curiae brief filed Respondent ( Fort Ord) one consolidated brief. |
| Apr 4 2006 | Case ordered on calendar Tuesday, May 2, 2006, at 1:30 p.m., in San Francisco |
| Apr 21 2006 | Supplemental brief filed Fort Ord Reuse Authority, respondent Sheri L. Damon, counsel |
| May 2 2006 | Cause argued and submitted |
| Jul 27 2006 | Received: letter dated July 25, 2006, regarding recent decision of a Court of Appeal case, # D046728 Fort Ord Reuse Authority, respondent Mary L. Hudson, counsel |
| Jul 31 2006 | Opinion filed: Judgment reversed and the cause remanded to that court with directions to order the superior court to vacate its writ of mandate and to issue a new writ consistent with the views set forth in this opinion. Majority Opinion by Werdegar, J. joined by George, C.J., Kennard, Baxter, Moreno and Corrigan, JJ. Concurring & Dissenting Opinion by Chin, J. |
| Aug 31 2006 | Remittitur issued (civil case) |
| Sep 5 2006 | Received: Receipt for Remittitur from the Court of Appeal, Sixth Appellate District No. H023158, Superior Court No. M41795, M41781 |
| Sep 11 2006 | Note: record sent to Sixth Appellate District - six doghouses |
| Briefs | |
| Dec 30 2003 | Opening brief on the merits filed |
| Feb 17 2004 | Answer brief on the merits filed |
| Mar 9 2004 | Reply brief filed (case fully briefed) |
| Apr 12 2004 | Amicus curiae brief filed |
| Apr 12 2004 | Amicus curiae brief filed |
| Apr 12 2004 | Amicus curiae brief filed |
| Apr 12 2004 | Amicus curiae brief filed |
| Apr 13 2004 | Amicus curiae brief filed |
| May 3 2004 | Amicus curiae brief filed |
| May 18 2004 | Response to amicus curiae brief filed |
| May 19 2004 | Response to amicus curiae brief filed |
