The Fourth District of the California Court of Appeal recently ruled that the California State University system could not use budgetary uncertainty as a basis for determining the feasibility of mitigation for off-campus impacts. In City of San Diego v. Board of Trustees of the California State University, 2011 DJDAR 17803, filed on December 13, the court upheld a broad-based challenge to the EIR for the San Diego State University Master Plan.
Among other things, the EIR claimed that the University could not feasibly mitigate project-related traffic impacts that would occur off-campus. Consistent with mitigation measures in the EIR, the resolution approving the project and certifying the EIR required the University to request from the State legislature the necessary funding for the University's fair share of off-campus traffic- and transit-related improvements. The resolution also stated that because the University ultimately relied on funding from the State legislature, the University could not guarantee the allocation of sufficient funds or the timing of that allocation, nor could the University guarantee that the local agencies would fund the measures for which those agencies were responsible. Nevertheless, the resolution directed the Chancellor of the University to proceed with the project even if the legislature allocated insufficient funds for mitigation, finding that due to the various funding uncertainties, the off-campus traffic impacts would remain significant and unavoidable, but "are necessarily outweighed by the Statement of Overriding Considerations adopted by [the University]."
Several local agencies challenged the EIR, claiming with respect to traffic mitigation that the University failed to evaluate potential alternative funding sources for mitigation; failed to evaluate on-campus actions or alternatives that could reduce or avoid off-campus traffic impacts; and wrongly disclaimed, on the basis of theoretical budgeting constraints, its responsibility and ability to mitigate the significant environmental effects of its project. The court agreed, finding that nothing in CEQA, the Education Code, or any other statutory provision prevented the University from using funds other than those obtained through the legislative process for voluntary payments to third parties to implement mitigation to reduce or avoid the significant effects of a University project.
The court correctly observed that allowing the University's "unavoidable uncertainties" regarding budgeting to equate to infeasibility would effectively sanction the avoidance of payment of fair-share mitigation fees for extra-jurisdictional impacts created by the discretionary action of any State agency. Consequently, the University would need to demonstrate infeasibility in other ways, including:
- Evaluating potential sources of funding for fair-share mitigation fees other than legislative appropriations;
- Evaluating possible on-campus measures that could reduce or avoid off-campus impacts rendered the EIR defective as in informational document; or
- Demonstrating that the public agencies that held the jurisdiction to implement the mitigation measures would reject or had rejected the proposed measures even if the University paid its fair share.
However, the failure of the EIR to discuss any of the above possibilities precluded a finding of infeasibility for fair-share mitigation payments.
The lesson? Public agencies that depend partly on some form of legislative allocation for operating funds cannot simply conclude, on the basis of funding uncertainties, that payment of fair-share mitigation fees for extra-jurisdictional impacts is infeasible. Rather, the agency must show that no alternative means exists to fund mitigation, that the agency with sole jurisdiction over implementation of the mitigation has refused to implement the necessary measures even if the lead agency pays its fair share, or that that no feasible mitigation measures within the lead agency's jurisdiction would reduce or avoid extra-jurisdictional impacts.
In this day and age of public budget deficits, this decision could have serious consequences for public projects throughout California.
Neill Brower represents JMBM's clients in environmental and land use issues, including permitting and regulatory compliance under CEQA, NEPA, CERCLA, RCRA, the Clean Water Act, and the California Fish and Game Code. Prior to his legal career, Neill worked for 10 years managing and preparing a variety of environmental and urban planning documents, including environmental impact reports and statements, archaeological and historic resources technical studies, and natural resources permit applications. He also provided peer review of planning and technical documents. During this time, Neill worked extensively with local and state agencies as clients and as regulators. Contact Neill at NBrower@jmbm.com or 310.712.6833.