Potential Impacts of These Decisions
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.”[1]
[1] 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.