Based on these decisions, our advice to both general purpose public agency clients and to educational agencies is to continue to work cooperatively and collaboratively to address the issues associated with the financing of off-site public infrastructure. In light of the City of Marina and County of San Diego cases, we believe these issues should be raised and addressed as early as possible in the planning process. Further, it is advisable to resolve all financing issues informally prior to adoption or approval of the CEQA review of the public project so they can be addressed in the CEQA document. By approaching these financial responsibility issues in a cooperative manner, we believe public agencies may be able to avoid the creation of expensive disputes, such as occurred in these two cases. http://www.bbklaw.com/news-firm-116.html
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. FOR A 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
court, we conclude the Trustees have abused their discretion and thus reverse the Court of Appeal’s contrary decision.
The County appeals, contending (1) the District is subject to the mitigation requirements of CEQA; (2) the District's findings of infeasibility are not supported by substantial evidence or the law, and thus the District failed to comply with its CEQA obligations; (3) the District's claim of legal infeasibility is erroneous; (4) the District's failure to adopt mitigation measures is not excused by its adoption of the statement of overriding considerations because it is not supported by substantial evidence; and (5) the District's argument that its funding of off-campus traffic mitigation measures would be an unconstitutional gift to the County of public funds is unavailing because CEQA does not require a gift of public funds.
We must determine whether the District prejudicially abused its discretion by certifying the final EIR, adopting the CEQA findings and statement of overriding considerations, and approving the master plan without adopting feasible measures to mitigate the project's adverse significant off-campus traffic impacts that are identified in the final EIR. To make this determination, we must decide whether the District is authorized by the Legislature to spend public funds to improve off-campus roads and intersections, some of which are owned and maintained by the County, and therefore whether it is legally feasible within the meaning of CEQA for the District to fund its proportional share of the needed off-campus road improvements as a means of mitigating the off-campus traffic impacts identified in the final EIR. We must also decide whether substantial evidence supports the District's claim of economic infeasibility.
We conclude the District is authorized under the provisions of the Community College Construction Act of 1980 (Ed. Code, § 81800 et seq.), Education Code section 81949, and pertinent regulations (specifically, Cal. Code Regs., tit. 5, §§ 57100 & 57121, subd. (f)) to spend public funds to mitigate the project's significant adverse off-campus traffic impacts, and thus the District's claim of legal infeasibility fails. We also conclude the District's claim of economic infeasibility is not supported by substantial evidence. Accordingly, we hold that the District prejudicially abused its discretion, and the judgment must be reversed.
1) Mitigation must precede or accompany activities that will cause the negative effects. Many current mitigations are inadequate and/or deferred in the current DEIR for the Port Master Plan.
“Formulation of mitigation measures should not be deferred until some future time.” Courts have held EIRs to be inadequate when the mitigation measure “does no more than require a report be prepared and followed, or allow approval by a county department without setting any standards.”
 Endangered Habitats League, Inc. v. County of Orange, 131 Cal.App.4th 777, 794 (2005).
CALTRANS and SANDAG both wrote letters indicating that the city is responsible for mitigating effects of 331,000 additional ADT’s (in UCSP). One can use the same cases to conclude that the city and the port are responsible with the developers for paying for whatever the new EIR for the Bayfront Master Plan shows are the negative effects on areas outside of the city, before permits are approved.
The city of Chula Vista is required to do this by the Cummings Initiative before development starts. The Port will also be required by CEQUA to pay for its share. Participation in the five year or more discussion group with CALTRANS could be seen by the courts as an illegal deferral of mitigation.
The traffic mitigations now listed in the city’s UCSP are unlawfully deferred until yearly TMP (a written report) shows a need or the I-5 Corridor Study is completed (according to text this may take more than 5 years). This would be feasible mitigation if there was a traffic impact fee for the west (It is expected to take a year to develop one.) and if there was an actual schedule as to when Tier I improvements would start and adequate funding to pay for them was identified. As it now stands there is no traffic fee, the city has no money budgeted or identified, and a plan for mitigating is deferred to some time in the future when a traffic study shows an impact. The mitigations are supposed to lessen the impact before or as it happens. (The same can be said for impacts from the Bayfront Master Plan.)
This is text from the cities UCSP EIR explaining what the corridor study is:
5.8.5-6: The City shall participate in a multijurisdictional effort conducted by Caltrans and SANDAG to assist in developing a detailed engineering study of the freeway right-of-way that will identify transportation improvements along with funding, including federal, state, regional, and local funding sources, and phasing, that would reduce congestion consistent with Caltrans Standards on the I-5 South corridor from the State Route 54 (SR-54) interchange to State Route 75 (SR-75)/Palm Avenue (the “I-5 South Corridor”) (hereinafter, the “Plan). Local funding sources may include fair share contributions by private development based on nexus as well as other mechanisms. The Plan required by this mitigation shall include the following:
1) The responsible entities (the “Entities”) included in this effort will include, but may
not be limited to the City, the Port, SANDAG, and Caltrans. Other entities may be included upon the concurrence of the foregoing Entities.To coincide with multiyear planning effort that began June 2005, is ongoing and scheduled to conclude in three to five years. City of Chula Vista
(CCV), in cooperation with other jurisdictions.
2) The Plan will specifically identify physical and operational improvements to I-5, relevant arterial roads and transit facilities (the “Improvements”), that are focused on specific transportation impacts and will also identify the fair share responsibilities of each Entity for the construction and
financing for each Improvement.
3) The Plan will set forth a timeline and other agreed-upon relevant criteria for implementation of each Improvement.
4) The Plan will identify the total estimated design and construction cost for each Improvement and the responsibility of each Entity for both implementation and funding of such costs.
5) The Plan will include the parameters for any fair-share funding contributions to be implemented, that would require private and/or public developers to contribute to the costs, in a manner that will comply with applicable law.
6) In developing the Plan, the Entities shall also consider ways in which the Improvements can be coordinated with existing local and regional transportation and facilities financing plans and programs, in order to avoid duplication of effort and expenditure; however, the existence of such other plans and programs shall not relieve the Entities of their collective obligation to develop and
implement the Plan as set forth in this mitigation measure. Nothing in the Plan shall be construed as relieving any Entity (or any other entity) from its independent responsibility (if any) for the
implementation of any transportation improvement.
7) The City shall seek adoption of the Plan before the City Council upon the completion of the multi-jurisdictional effort to develop the Plan. The City shall report, to their governing bodies regarding the progress made to develop the Plan within six months of the first meeting of the
Entities. Thereafter, the City shall report at least annually regarding the progress of the Plan, for a period of not less than five years, which may be extended at the request of the City Council.
8) The Plan shall also expressly include each Entity’s pledge that it will cooperate with each other in implementing the Plan. The failure or refusal of any Entity other than the City to cooperate in the implementation of this mitigation measure shall not constitute failure of the City to implement this mitigation measure; however, the City shall use its best efforts to obtain the cooperation of all responsible Entities to fully participate in order to achieve the goals of the mitigation measure.