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HomeMy WebLinkAbout02-17-2015 Public Comment White1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BABAK NAFICY (State Bar No. 177709) Law Office of Babak Naficy 1504 Marsh Street San Luis Obispo, CA 93401 Telephone: (805) 593 -0926 Facsimile: (805) 593 -0946 __ babaknaficy @sbcglobal.net Attorneys for Petitioner: FEB 18 2015 ALLIANCE OF SLO NEIGHBORHOODS Y ,! U.a ¢ SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN LUIS OBISPO ALLIANCE OF SLO NEIGHBORHOODS, Case No: 14CV -0334 b4' ' Plaintiff /Petitioner, vs. OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, and 'Hearing Date: April 20, 2015 DOES 1 -20, en, . 10:00 a.m. Dc�nartment 1 Defendants /Respondents. Martin J. Tangeman PEA ITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. INTRODUCTION .............. ............ ........,.....................1 II. THE PARTIES .............................................................................. ..............................1 III. STATEMENT OF FACTS ........................................................... ..............................2 IV. LEGAL ARGUMENT .................................................................. ..............................7 A. CEOA Mandates ............................................................... ..............................7 B. Standard of Review.......... .................................................. ..............................8 C. The FEIR's analysis of the feasibility of the environmentally sutaerior alternatives violated CE A and the Trustees reasonina for re'ectin this alternative as infeasible is not based on substantial evidence .............. 9 1. The list of project objectives was deliberately and artificially drawn narrowly in order to support the Trustees rejection of the environmentally superior alternative ....................... .............................10 2. The FEIR failed to adectuately analyse the feasibility of developine the Project at the environmentally superior site ............ .............................13 a. The FEIR 's estimate of the additional cost of developing the environmentally superior site is inadequately explained and not supported by substantial evidence ........ .............................13 b. The FEIR 's analysis of the cost of developing the environmentally superior alternative site ignores evidence of the additional cost associated with developing the Slack Street site ........................................... .............................15 D. The Trustees rejection of the environmentally superior site amounts to an abuse of discretion .................................................... .............................17 1. Contrary to the FEIR and Trustees findings, the University had no set budget for this project ............................ .............................18 2. The H- 12114-16 site would achieve all legitimate project objectives... 20 PI I ITIONER'S OPENING BRIEF IN SUPPORT OI; PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. The Trustees' findine that the Proi+ect's sip-nificant_air guality impact is "unavoidable" is not supported by substantial evidence ............................20 F. The Proiect is inconsistent with Cal Poly Master Plan .. .............................22 V. CONCLUSION .............................................................................. .............................25 PETITIONER'S OPENING BRIEF IN SUPPORT OF PE'T'ITION FOR WRIT OF MANDATE -2- TABLE OF AUTHORITIES CASES Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1185 .......................................................... .............................14 Berkeley K cp Jets Over the Bay Corn. v. Board of Port Cmrs. (2001) 91 Cal.App.4"' 1344, 1371 ........................... Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 883 ............................................................... .............................10 Citizens to Preserve Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 428 ................................................................. ..............................8 Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 83 .................................................................................................. 9 Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935 ........................................................,................. .......................,.....24 Friends of Mammoth v. Board of Supervisors (1972) 8 Cal. 3d 247 .................................................................................... ..............................8 In re Bay-Delta etc. (2008) 43 Cal. 4th 1143, 1166 .................................................................... .............................13 Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692 ......................................................................... ..............................8 Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392 ............................................................., .............................7, 8, 9, 15 Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1354 ........................................................... .............................17 Resource Defense Fund v. LAFCO (1987) 191 Ca1.App.3d 886, 897- 8 .............................................................. ..............................8 San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1, 18 ..................................................................... .............................10 San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 729, 734 .......................................................... ..............................9 ii. TABLE OF AUTHORITIES (Continued) CASES Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 1458 ................................................ ............................10, 13, 19 Save our Peninsula v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, 117 .................................................................... ..............................8 Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30,44 ..................................................................... ..............................7 Sierra Club v. State Bd. of Forestry (1999) 7 Cal.4u' 1215, 1236 ......................................................................... ..............................9 The Flanders Foundation v. City of Carmel -by- the -Sea (2012) 202 Cal.App.4th 603, 620- 621 ................................................... ............................19, 20 Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.41h 587,601 ................................................................ .............................19 Vineyard Area Citizens for Responsible Growth, Inc. v. city of Rancho Cordova ("Vineyard") (2007) 40 Cal.41h 412, 435 ........................................................................... ..............................9 CEQA GUIDELINES CEQAGuidelines § 15003( f) ...................................................................... ..............................8 CEQAGuidelines § 15091( b) ................................................................. .............................9, 10 CEQAGuidelines § 15126( b) ...................................................................... .............................15 CEQAGuidelines § 15126. 6( c) .................................................................... ..............................9 CEQA Guidelines § 15126. 6( d) ................................................................... .................•...........17 CEQA Guidelines § 15126. 6( e)( 1) ............................................................... ..............................9 CEQAGuidelines § 15364 ........................................................................... ..............................9 CEQAGuidelines §15384(a) ...................................................................... .............................14 Im TABLE OF AUTHORITIES (Continued) STATUTES C.C.P § 1085 ................................................................................................. ..............................8 C.C.P. § 1094. 5 .............................................................................................. ..............................8 C.C.P.§ 1094. 5( b) ........................................................................................ ..............................8 PRC§ 21000 ................................................................................................. ..............................7 PRC§ 21001(a) .......................................................................................... ..............................7 PRC§ 21001( d) .......................................................................................... ..............................7 PRC§ 21002 ............................................................................................. .............................7, 9 PRC§ 21002.1(a) ...................................................................................... ..............................9 PRC§ 21002.1(b) ...................................................................................... ..............................7 PRC§ 21005( a) ............................................................................................. ..............................8 PRC§ 21061. 1.............. ........................................................................... .............................9, 20 PRC§ 21081. 5 ............................................................................................. .............................10 PRC§ 21082 ................................................................................................. ..............................7 PRC§ 21100( b)( 4) ....................................................................................... ..............................9 PRC§ 21150 ................................................................................................. ..............................9 PRC§ 21168. 5 .............................................................................................. ..............................8 iv. 1 2 3 4 5 6, 7' 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25', 26 27 28 BABAK NAFICY (State Bar No. 177709) Law Office of Babak Naficy 1504 Marsh Street San Luis Obispo, CA 93401 Telephone: (805) 593 -0926 Facsimile: (805) 593 -0946 babaknaficy @sbcglobal.net Attorneys for Petitioner: ALLIANCE OF SLO NEIGHBORHOODS SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN LUIS OBISPO ALLIANCE OF SLO NEIGHBORHOODS, I Case No: 14CV -0334 Plaintiff /Petitioner, vs. THE BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, and DOES 1 -20, Defendants/Respondents. G BRIEF IN SUPPORT OF IN FOR WRIT OF MANDATE g Date: April 20, 2015 10:00 a.m. meat 1 Martin J. Tangeman PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE sm 2 3 4 5 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Alliance of SLO Neighborhoods ( "Alliance" or "Petitioner ") seeks to set aside the California State University Board of Trustees' ( "Trustees ") approval and certification of an Environmental Impact Report ( "EIR ") for a 1,475 bed student housing dormitory complex ( "the Project ") at the south end of the California Polytechnic State University, San Luis Obispo ( "Cal Poly" or "University ") campus. It is important to note that Petitioner supports the University's efforts to provide additional undergraduate housing on campus. Nevertheless, Petitioner contends the Trustees violated CEQA and abused their discretion when they concluded that relocating the Project to an environmentally superior site would be infeasible. The environmentally superior site would avoid a significant aesthetic /visual compatibility impact while achieving all of the Project's core objectives. As explained below, the Trustees failed to adequately analyze the feasibility of moving the Project to a location north of the campus core, on existing parking lots H -12 and H -16. More specifically, Petitioner contends the Trustees failed to undertake an accurate and fair cost comparison between the selected site and the environmentally superior site; the Trustees emphasized the perceived additional cost of the environmentally superior site, but ignored the cost savings that could be realized by moving the project. Moreover, the evidence shows that at least some of the stated Project objectives are pre - textual and narrowly crafted to disqualify the environmentally superior site. Petitioner further contends that (1) the Trustees' conclusion that the Project's significant air quality impacts are "unavoidable" because the mitigation would be economically infeasible is not supported by substantial evidence and (2) the Trustees failed to adequately consider whether the Project provides an adequate buffer within the meaning of the University's 2001 Master Plan. II. THE PARTIES Petitioner and Complainant, Alliance of SLO Neighborhoods, is an unincorporated association of residents of San Luis Obispo, including many individuals who live close to the proposed site of the new Cal Poly "Student Housing South" project. As such, these members of the Alliance would be directly affected by the construction and implementation of the Project. The Alliance has standing to maintain this action because its members actively participated in the environmental review process by submitting written comments and attending and commenting at public meetings where they orally voiced their comments. Respondent and Defendant, Board of Trustees of the California State University, is the PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE. - 1 - 4 5' 6 7 8 91 10 11, 12 13 14 15 16 17 181 19 20 21 22 23 24 251, 26 27 28 governing body of the California State University system and the lead agency for this Project, as well as the entity responsible for certifying the Final EIR and approving the Project. The Project applicant is Cal Poly. III. STATEMENT OF FACTS The Project is a student housing complex designed to house 1,475 freshman students, a 300- to 500 -space parking and related recreational facilities and office space on the southeastern edge of campus and northwest of the intersection of Grand Avenue and Slack Street in San Luis Obispo. Administrative Record ( "AR ") 6:1503. The site is currently occupied by three surface I parking lots, referred to as General (G) -1, G -4 and Residential (R) -2. The approximately 12 -acre Isite currently provides about 1,324 parking spaces for staff, campus residents and the general population. The Alta Vista and Monterey Heights single - family neighborhoods of the City of San Luis Obispo border the Project site immediately to the south. These neighborhoods are zoned R -1 (low - density residential). According to the Recirculated Draft EIR ( "DEIR") Residential neighborhoods generally consist of multi -unit apartments to the west, and single - family detached homes are predominant to the south and southeast, although a few apartment buildings also line Grand Avenue south of campus. A mix of student and nonstudent housing comprises the surrounding residential areas. These neighborhoods in the campus vicinity were mostly developed during the 1940s through the 1960s. One- and two -story houses are seen on modestly sized lots typical of residential subdivisions of the era. Although many of the houses are typical of mid - century suburban residences, the architectural styles and forms vary. Accordingly, the moderately high aesthetic cohesion of these neighborhoods is mostly the result of the mature, well - established landscaping intermingled among the residences and the streets rather than the residential structures themselves. The section of Grand Avenue approaching campus is designated as a Scenic Roadway in the City's Circulation Element. The designation is a function of the "boulevard" aesthetic along the roadway and the prominent campus gateway. This section of Grand Avenue also serves the residential neighborhoods to the east and west. These adjacent neighborhoods have no historic, scenic, or cultural designation per City policy or ordinance. DEIR 6:1591. The former Pacheco Elementary School site is also adjacent to the southern border I of the Project, and is currently occupied by private schools, public preschools and public children's I therapeutic services. Beginning in Fall 2014, however, the Teach Elementary School program has located to this site, accommodating an additional 150 students. The San Luis Obispo Classical I Academy, which has an enrollment of 350 students, will also remain in operation on the site. AR 6:1508. PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE - 2 - I 2 3 4 5 6 7 8 9 10 11 12 13' 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The construction of the Project would require disturbance of the entire site, substantial excavation and grading, re- contouring and disposal of fill. The FEIR explains that because "there is evidence of undocumented fill underlying the existing parking area" on the site, it is "assumed" that at least 5 feet of soil will be excavated across the entire 12 -acre site, necessitating the removal 2.6 million cubic feet of dirt and debris. AR 6:1513. The entire site would need to be re- contoured to focus drainages towards planned I bioswales. Ibid. The construction of the parking structures will also require major excavation and grading because the parking structures will be partially built into the slope, with one or two stories below grade. The grading of the entire site will result in the removal of all existing mature trees on site. Ibid. As explained below, the FEIR underestimates the extent and corresponding cost associated with excavation of the site. The 2001 Master Plan Physical development on the Cal Poly campus is governed by the 2001 Master Plan, which includes both maps identifying the location of various proposed development, and principles and guidelines for the development of any future physical development on campus. According to the EIR, "The 2001 Cal Poly Master Plan is the primary document governing land use and capital improvements on campus through the year 2020." In fact, according to the University's own rules, the Project must be consistent with the Cal Poly Master Plan which was adopted and certified by the Trustees in 2001. AR 18:4963. The Master Plan admits that the University has a significant impact on the whole of the City, but more acutely, the adjacent neighborhoods including the Alta Vista and Monterey Heights neighborhoods immediately to the south of the University. In this regard, the 2001 Master Plan explains that "[t]he City, including these neighborhoods in particular [i.e. Alta Vista and Monterey Heights], is concerned with traffic generated by the campus, parking on local streets, impacts of Cal Poly and Cuesta Community College students and faculty on the local housing market, noise from campus operations and activities and visual impacts such as night lighting." AR 12:3397. The Master Plan proposed using a portion of the project site for constructing "an unlighted informal recreation area" to address the field space deficiency in this part of the campus. AR 13:3498. The recreational area was intended to accommodate a softball field, a recreation soccer /football field, and two basketball courts. Ibid. The Master Plan did not identify the site as appropriate for undergraduate residential facilities. The Master Plan identified a number of other sites for residential development, including a PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -3- 4 5 6 7 8 91 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 much smaller site on Grand Street near Yosemite dormitory for a 136 -bed apartment -style residences. AR 13:3485. This site, however, would be buffered from the residential neighborhood by another building that is projected to be a visitor center. AR 13:3557. As part of the approval of this project, the Trustees amended the Master Plan to designate the Project site for freshman residential halls. As explained more fully below, the amendment was inconsistent with the Master Plan's design guidelines and planning principles. The Environmental Review Process and public participation In November 2013, Cal Poly released a Draft EIR for the Student Housing South Project [i.e. the Project]. AR 6:1503. The 2013 Draft EIR ( "DEIR ") concluded that the project would result in significant, unavoidable impacts related to air quality and traffic. The public comment period was initially slated to close January 9, 2014, but was extended to January 24, 2014 due to public demand. Ibid. According to the Recirculated EIR, "[d]uring the public comment period, new information was provided by Cal Poly which necessitated recirculation of portions of the 2013 Draft EIR." Ibid. Ibid. According to the DEIR, it contains the following additional information: • Aesthetic Resources. Additional simulations have been prepared and incorporated into the impact analysis. • Utilities. Updated water supply information has been incorporated into the Utilities section and the accompanying Water Supply Assessment (WSA). • Alternative Analysis. Two additional site alternatives were provided by the University, which have been incorporated into the analysis. Two more alternatives have also been added to address comments by the San Luis Obispo Council of Governments (SLOCOG), and significant and unavoidable impacts related to view blockage (Aesthetics). • Other Alterations. Several minor changes were made in the remaining sections of the EIR. These changes are denoted with an underline for easier review. A number of public agencies, including the City of San Luis Obispo, and a large number of individuals, including members of the Alliance, were engaged in the environmental review process and raised significant concerns about the Project's impacts. These comments argued that the Project is inconsistent in its aesthetics, scale and density with the adjacent R -1 residential neighborhoods. Public comments, as well as those by the City of San Luis Obispo, convincingly established that the Project would result in significant adverse impacts to the adjacent residential neighborhoods by creating excessive nuisance noise, glare and traffic, and by blocking scenic views of the surrounding mountains from public rights -of -way. See, Response to comments, AR PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -4- 2 3 4 5 6 71 it 10. 11 12 13 14 15 16 17 18 19, 20 21 22 23 24 25 26 27 28 volumes 2 -5. It was in response to these comments that the Trustees elected to recirculate the draft I EIR to consider additional mitigation and alternatives. A Recirculated Draft EIR was produced in February 2014, with a 30 -day comment period. A Final Recirculated EIR was published in May 2014. The Final EIR was swiftly certified by the Trustees and a Notice of Determination was posted on May 22, 2014. The FEIR and the Trustees concluded the Project would result in significant and unavoidable impact on aesthetics, air quality and traffic. The significant aesthetic impacts are caused by the height and scale of the Project, which would block views of Bishop Peak, Cerro San Luis, and the Santa Lucia foothills as seen from Grand Avenue. AR 1:18. The Trustees concluded that the Project's visual impacts are significant also because the Project "conflicts with the visual character of the surrounding area" and "would appear out -of- scale and would reduce views to identified scenic resources." Ibid. The Trustees' also admit that "the interface between the large buildings I along the perimeter would not have a harmonious visual transition to the surrounding community, and cumulative impacts would be significant." Ibid. The Trustee concluded that even with mitigation (which consists of planting trees and reducing the height of one building) "the project results in a significant and adverse impact related to visual compatibility with the surrounding neighborhood." AR 1:20. Although the Trustees could have addressed the Project's aesthetic impacts and visual incompatibility by selecting one of the environmentally superior alternatives, the Trustees concluded that these alternatives were infeasible for programmatic and economic reasons. As explained more fully below, the Trustees' finding of infeasibility is not supported by any adequate analysis or substantial evidence. The Trustees and the FEIR also concluded that the impact on air quality would be I significant both as to the construction and operation of the Project because the Project would exceed the daily emission thresholds for reactive organic compounds (ROG) and nitrogen oxides (NOx). Ibid. These impacts in turn result in a significant, long -term cumulative air quality impacts. The Trustees concluded that these impacts could not be feasibly mitigated for operational 1 It is important to note that the impact associated with the height and scale of the buildings is especially significant because "[t]he site is elevated approximately 6 -10 feet above Slack Street." AR 6:1508. PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -5- 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and /or economic reasons. As to construction emissions, the Trustees concluded that extending the period over which architectural coating are applied would reduce the impact to a less than significant level, but decided that this mitigation measure would be infeasible because it would (a) increase other pollutants and (b) limit the time for application to three hours. This analysis however, is not supported by the FEIR or substantial evidence. Likewise, the conclusion that mitigation of operational emissions is infeasible is not supported by any substantial evidence in the record. In their comments, members of the public identified a number of potentially feasible alternative sites, for the proposed dormitories and related facilities. These include a reduced sized alternative, as well as alternative locations, more in line with the 2001 Master Plan, more towards the interior of the campus and away from low- density residential neighborhood to the south of campus. The EIR and the Findings admit that these alternatives would meet most of the Project's objectives. According to the FEIR and the Findings, alternative locations such as H -12 and H -16 parking lots, or Via Carta location, are infeasible because in each case, the alternative location would significantly increase the cost of construction by an estimated $25,000,000. As explained infra, there is no substantial evidence or adequate discussion in the FEIR to support or justify this cost estimate. There is only a single virtually unintelligible one -page document in the record purporting to justify the cost estimates. AR 37:10677. The FEIR's alternatives analysis is flawed also because the stated project objectives that according to the Trustees make this alternative infeasible are pre - textual and overly narrow, and artificially created specifically to support the Trustees claim that these alternatives are infeasible. Moreover, the Trustees estimate of the cost of this alternative failed to take into account any savings that could be realized by pursuing the alternative sites. As explained below, the Trustees failed to take into account the fact that in contrast to the H- 12/H -16 site, construction of the Project on the preferred site would require massive amounts of grading and earthmoving and dewatering because of the presence of undocumented fill and shallow groundwater. The evidence in the record and the analysis presented in the FEIR do not support the Trustee's conclusion that the supposed increased cost of developing this environmentally superior alternative would render the alternative site economically infeasible. There is no evidence to suggest the University ever considered securing alternative funding to pay for the additional cost of these alternatives, or whether the cost could be recovered over time by including a small PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE 1 2 3 4 5 6 7 8 9 10 111 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I increase to the rental cost. The Trustees and the FEIR's conclusion that the environmentally superior alternative and the air quality mitigation measures are not economically infeasible are based largely on the Trustees claim that the Project's budget is fixed and the additional cost of the mitigation measures or alternatives would be economically infeasible. Yet, the FEIR fails to adequately explain the Project's funding mechanism, other than to explain that housing, parking and dining are not state - supported. While the University has consistently maintained that it has a "set budget to complete the entire project," the evidence in the record shows the Project's budget was reverse - engineered to match the preferred alternative's cost estimate. The evidence does not support the Trustee's conclusion that the University's project cost of the environmentally superior sites would render the Project economically infeasible. IV. LEGAL ARGUMENT A. CEOA Mandates CEQA was enacted to require public agencies and decision - makers to document and consider the environmental implications of their actions before formal decisions are made (Public Resources Code ( "Pub. Res. C. ") §21000) and to "[e]nsure that the long -term protection of the environment shall be the guiding criterion in public decisions." (Pub. Res. C §21001(d)). The Legislature has clearly declared that it is the policy of the state to "[d]evelop and maintain a high - quality environment now and in the future, and take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state. (Pub.Res.Code § 21001 (a)). In furtherance of this objective, "[i]t is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives ... available which would substantially lessen the significant environmental effects of such projects ....((Pub.Res.Code § 21002)) . The lead agency is duty bound not approve projects as proposed if there are feasible alternatives. In Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 44, the court "[agreed] with this proposition as a matter of law since that is the mandate of sections 21002 as well as section 21002. 1, subsection (b) and 21082." The environmental review process under CEQA is intended assure the public that "the agency has, in fact, analyzed and considered the ecological implications of its actions." ((Laurel Heights Improvement Ass. v. Regents of the University of California (1988) 47 Cal.3rd 376, 392.)) The function of the environmental review is not merely to result in informed decision - making on PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -7- 2 3 4 5 6 7 8 9 10 III 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the part of the agencies, it is also to inform the public so they can respond to an action with which I i they disagree. (Id.) "CEQA was intended to be interpreted in such a manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory authority." (14 California Code of Regulations, (hereinafter cited as "CEQA Guidelines ") §15003(f), citing I Friends of Mammoth v. Board of Supervisors, (1972) 8 Cal. 3d 247.) "[T]he overriding purpose of CEQA is to ensure that agencies regulating activities that may affect the quality of the environment give primary consideration to preventing environmental damage. CEQA is the Legislature's declaration of policy that all necessary action be taken `to protect, rehabilitate and enhance the I environmental quality of the state. "' (Save our Peninsula v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, 117, citing Laurel Heights, supra, 47 Ca1.3d at 392; and Pub. Res. C § 21000.) B. Standard of Review This action is maintained pursuant to Pub.Res.C. §21168.5 and Code of Civil Procedure (C.C.P.) § 1085 or § 1094.5, which require that an agency's approval of a project be set aside if the agency has prejudicially abused its discretion. Prejudicial abuse of discretion occurs either where an agency has failed to proceed in a manner required by law, or where its determination or decision is not supported by substantial evidence. (C.C.P. § 1094.5(b)). The lead agency's failure to adhere to CEQA's procedural or substantive requirements constitutes prejudicial abuse of discretion even if proper adherence to CEQA mandates may not have resulted in a different outcome. (Pub. Res. C. §21005(a)). Citizens to Preserve Ojai v County of Ventura (1985) 176 Cal.App.3d 421, 428 held that the certification of an EIR that had not adequately discussed the environmental impacts of the project constituted a prejudicial abuse of discretion even if strict compliance with CEQA mandates would not have altered the outcome. Resource Defense Fund v. LAFCO (1987) 191 Cal.App.3d 886, 897 -8, went so far as to declare that failure to comply with CEQA procedural requirements was per se prejudicial. Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692 explained that an agency commits prejudicial error if "the failure to include relevant information precludes informed decision making and informed public participation, thereby thwarting the statutory goals of the EIR process." Id., at 712. An agency's failure to conduct an adequate environmental analysis under CEQA amounts 'to a failure to proceed in a manner required by law, subject to de novo review by the court. PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDA'T'E - 8 - 21 4 6 7 8 9 10 11 12 13' 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Vineyard Area Citizens for Responsible Growth. Inc. v. city of Rancho Cordova ( "Vineyard" (2007) 40 Cal.41h 412, 435.) Thus, as a matter of law, courts reject EIRs that do not "provide certain information mandated by CEQA and [] include that information in the environmental I analysis." (Id. at 435; see also Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 83 ( "CBE ") [agency's conclusion that the project would not result in capacity to process lower quality crude oil not adequately supported by facts and analysis]; Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1371 (`Berkeley Keep Jets ") [EIR failed to support conclusory statements with scientific or objective data]; San Joaquin Raptor /Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.AppAth 713, 729 (EIR failed to provide a complete and accurate description of the environmental setting of the project site); Sierra Club v. State Bd. of Forestry (1999) 7 Cal.41h 1215, 1236 (agency failed to obtain information necessary to meaningful assessment of potentially significant environmental impacts and development of mitigation measures)). C. The FEIR's analysis of the feasibility of the environmentally superior alternatives violated CCOA and the Trustees reaoonane for re;ectine this alternative as infeasible is not based on substantial evidence. The EIR must identify feasible alternatives that could avoid or substantially lessen the project's significant environmental impacts. (Pub.Res.Code §§ 21002, 21002.1(a), 21100(b)(4), 21150.) "A major function of an EIR `is to ensure that all reasonable alternatives to proposed projects are thoroughly assessed by the responsible official. An EIR's discussion of alternatives must include a discussion of a "no project" alternative to allow a comparison of the impacts of the project with the effects of not approving the project. "' (San Joaquin Raptor /Wildlife Rescue Center v. County Of Stanislaus (2007) 47 Cal.App.41h 713, 734; CEQA Guideline § 15126.6(e)(1).) "Feasible" means capable of being accomplished within a reasonable time, given the economic, environmental, social, technological and legal factors. (Pub. Res Code §21061.1, CEQA Guideline § 15364.) An adequate discussion of alternatives is required even if all the project's significant impacts are avoided or reduced to a less than significant level. (Laurel Heights, supra. 47 Ca1.3d at 403). Alternatives that fail to meet the Project's basic project objectives may be excluded or rejected on that basis. (CEQA Guidelines § 15126.6(c)). However, "there must be a disclosure of the `analytic route the ... agency traveled from evidence to action.' []" (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 883). The "EIR must explain why each suggested alternative either does not satisfy the goals of PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE - 9 - H 6 7 8 9 10 12 13 14 15 16 17 18, 19 20 21 22 23 24 25 26 27 28 the proposed project, does not offer substantial environmental advantages[,] or cannot be accomplished." (Save Round Valley Alliance v. County of Igyo (2007) 157 Cal.AppAth 1437, 1458.) The agency's infeasibility determination must be supported by substantial evidence in the record. PRC §21081.5 ; CEQA Guideline 15091 (b). CEQA provides two "junctures" for findings regarding the feasibility of project alternatives. First, alternatives are determined to be potentially feasible in the EIR. (citation omitted.) Second, in deciding whether to approve the project, the decision maker determines whether an alternative is actually feasible. (San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.AppAth 1, 18.) The Trustees rejected the environmentally superior H -12 and H- 16 site, mainly because, according to the Trustees, it "would exceed the available budget and increase impacts related to construction" and not achieve objectives of "the Housing Program to expand and co- locate the I freshman housing program ". The budgetary concern relates to the Trustees claim that this alternative would cost an additional $25,000,000 as compared to the selected site. The $25,000,000 additional cost, however, is not supported by substantial evidence. The Trustees rejection of this alternative must be set aside because (a) the Trustees cost estimate is not based on substantial evidence and (b) substantial evidence does not support the Trustees contention that co- locating freshman is a legitimate, stable and primary objective of the Project. i. The list of project objectives was deliberately and artificially drawn narrowly in order to support the Trustees resection of the environmentally superior alternative The Trustees rejected the environmentally superior site in part because it would allegedly not accomplish the Housing Program "objective" of co- locating the freshman dormitories with other freshman residential facilities and in proximity to an existing dining hall. AR 1:45. The Trustees violated CEQA by concocting this new objective at the last minute to justify the rejection of the environmentally superior site. This objective is not germane to the University's objective of increasing student housing on campus and not cited in the Master Plan or any other official document. It appears that prior to the public, SLO Council of Government, and City of San Luis Obispo's strong opposition to the selected site on Slack Street, neither the original nor the recirculated Draft EIR included any reference to co- location of all freshmen being a University objective. In fact, it appears that the reference to this objective was for the first time inserted into PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE' -10- I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I the EIR via an Errata accompanying the Final EIR, less than a month before the Project was approved. See, AR 2:455. Neither the original DEIR, nor the Recirculated DEIR refers to this objective. If co- locating all freshmen is a core objective of the Project, why then was this objective not identified in the Draft EIRs or any other formal documents until weeks before the Project was finally approved? There is no evidence that the University even contemplated this objective before spring of 2014. For example, the University's March 27, 2014 Submittal Package for review by the Housing Proposal Review Committee does not mention the objective of co- locating freshmen, or locating the dormitories near food facilities as an objective. See, AR 38: 11010. The objectives listed by Cal Poly in this proposal are all fairly broad, such as reallocation beds, reducing triple - bed configurations, addressing ongoing excess demand for housing, progress towards the goal of housing 100% of the first and second year students on campus, reducing student commutes, and utilizing campus lands for the "highest and best use." Co- locating freshmen near dining facilities is simply not on this list. It is also important to observe that even if co- locating the freshmen were an important objective of the Project, it does not follow that every single freshman dormitory must be located in the immediate vicinity of every other freshman. Nothing in the record suggests that colocation of freshmen must be absolute or how big the communities of freshmen need to be to derive the benefit of co- location. The environmentally superior alternative site would co- locate 1400 freshmen, a substantial number of freshmen by any account. There is no evidence in the record to suggest every single freshman on campus must be housed near every other freshman in order to benefit from co- location. Accordingly, even if co- location of freshman students is a legitimate objective of the Project, it would appear that co- location of 1400 freshmen would achieve this objective. The FEIR, as amended by the Errata, states that "having first year students living in residence halls in close communities within each other allows for a greater connection to the campus resources that are critical to the transition and success of first year students — dining, University Union recreation center, etc." AR 2:472. Similarly, the Findings states that "co- locate[ing] freshmen housing in a location with easy access to campus amenities such as dining and recreation center." Based on this definition, the H- 12/1-1-16 site would better achieve the ' I objective of fostering a better connection and easier access between freshmen housing and campus I I amenities, including a cafd, Student Union and recreation center. The Slack Street location may be PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE - 11 - 3 4 a 7 8 9 10 ll 12 13' 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 marginally closer to the Vista Grande dining hall, but a greater distance from other campus amenities identified as essential by the FEIR and the Trustees. It is therefore difficult to understand how the Slack Street site could be deemed superior at meeting this overall objective as compared to the environmentally superior alternative site. None of the academic articles included in the record by Trustees ostensibly to show J academic support for this objective actually buttress a claim that a population greater than 1400 Ifreshmen is necessary to enjoy the benefits of cohousing freshmen together. See AR 39 & 140:11315-11399. These articles suggest that benefits of co- locating freshmen students could be achieved by housing 1400 freshmen in one combined location. Other evidence in the record also cast doubt on whether this alleged objective actually informed the University's decision to select the Slack Street location. This evidence includes a student housing market study commissioned and relied on by Cal Poly itself, which concluded that "key decision factors influencing housing decisions include the total cost of rent and utilities as well as the proximity to classes." AR 38:10972. See, also AR 38:10988. ( "the cost of rent and utilities as well as the proximity to classes were two main factors that influenced students' decisions. ") In fact, for freshmen students, proximity to classes was the single most often cited factor influencing their decision on where to live (62 %), followed by availability of housing type (60 %). Ibid. Proximity to other freshmen, colocation of dormitories or proximity of dining halls was not even mentioned as one of the factors influencing housing decisions. Likewise, the objective of co- locating freshmen close to dining halls was not ever identified as an objective in the Master Plan, which, to the contrary, dispersed freshmen dormitories at various locations throughout the campus. See, 12:3485. The Master Plan recognized that face to face interactions to continue to dominate both curricular and co- curricular learning. Some of this will be intentional- organized seminars, labs, organizational meetings and team activities. Some will be serendipidous — the unplanned conversation at the bookstore, food court, library, or on one of the campus greens. Thus, student residential communities must enable students to be accessible to one another as well as to the campus instructional facilities." AR 3483 (emphasis added.) Thus, while the Master Plan does not identify colocation of all freshmen dormitories as a key objective, it does identify accessibility to the campus instructional facilities is a key consideration in selecting sites for freshmen dormitories. The environmentally superior site would PFTITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -12- 2 3 4 5 6 7 8 91 10� 11 12 13� 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 achieve this objective. Accordingly, substantial evidence does not support the conclusion that co- locating Ifreshmen dormitories was a bona fie objective of the Project, and therefore could not form the basis for the conclusion that the environmentally superior site is infeasible because it fails to achieve core Project objectives. The evidence cited above suggests that University's emphasis on co- location of freshmen as a core Project objective was pre - textual and result- driven, intended to 1 justify the selection of the preferred site. (In re Bay -Delta etc. (2008) 43 CalAth 1143, 1166.) ([A] I lead agency may not give a project's purpose an artificially narrow definition ".) 2. The FEIR failed to adequate analyze thefeasibility of develo .wing the Project at the environmentally superior site. The FEIR and Trustees rejection of the H- 12/11-16 site was also in part based on the contention that developing this site would be cost - prohibitive. In rejecting an alternative as I infeasible, an agency must "describe the specific reasons" for doing so in a manner "sufficient to 1 enable meaningful public participation and criticism," (Save Round Valley, 157 Cal.AppAth at 11458), and must support its rejection with substantial evidence. (Guidelines §15091(b)). Here, the I Trustees economic infeasibility argument in support of rejecting the environmentally superior I alternative was inadequate and violated CEQA because it did not include all relevant information to enable an apples -to- apples cost comparison, and is not supported by substantial evidence. a. The FEIR 's estimate of the additional cost of developing the environmentally superior site is inadequately explained and not supported by substantial evidence. The FEIR concluded that the H- 12/H -16 site is environmentally superior because it meets most of the project objectives and avoids at least some of the Project's significant adverse impacts, including the aesthetic impacts associated with incompatibility with the character and scale of the residential neighborhood immediately adjacent to the Project site. The Trustees rejected the environmentally superior site (H -12 and H -16) based in large part on the FEIR's claim that this alternative would cost an estimated additional $25,000,000. Yet, this estimate was not explained in the FEIR and barely mentioned in the record. The only reference Petitioner could find in support of this claim is a single -page, undated document entitled H -16 Additional Costs. AR 37:10620. The Administrative Record Index prepared by Trustees attributes this document to Joel Neel and contends it was created in November 2013, although this is impossible to verify. While difficult to decipher, the document appears to estimate the cost of a Dining Facility with a seating capacity of 467, or roughly one third of the total number of beds provided by the PE'TITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -13- 2 3 4 5 6 7 8 9 10 11 12 131 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I Project. Neither the assumption that such a dining facility would be needed, nor the cost estimate, I is substantiated by reference to any source or analysis. It is therefore impossible to ascertain the veracity of either assumption. It is not clear, for example, whether all other residential facilities were built near existing dining facilities, or whether other dining facilities other than Vista Grande, such as the Cafd near I the Student Union, could serve a residential facility on environmentally superior site. See, Map of ICal Poly attached to this brief. In short, without any explanation, the FEIR simply assumes that a I new dining facility would be needed, and asserts that it would cost roughly $11,000,000 without I any meaningful analysis justifying this figure. The "H -16 Additional Costs" memo does not amount to substantial evidence. Substantial evidence is defined as enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. (Cal. Code Regs. tit. 14, § 15384(a))" (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal. AppAth 1184, 1185.) While it is true that the environmentally superior alternative would be at a greater distance from the Vista Grande dining hall, it would be relatively close to other on- campus dining facilities. See attached Map. Even Vista Grande cafd is not so distant as to be inaccessible from the environmentally superior site. Although not mentioned in the FEIR's discussion of alternatives, The Poly Canyon residential facilities are at an even greater distance from the Vista Grande and other dining facilities as compared to the environmentally superior site. Students on a meal plan may use their meal credits to dine in any one of several on campus dining facilities2, some of which are closer to the environmentally superior alternative than the selected site. See, attached map. Accordingly, there is no substantial evidence supporting the conclusion that the environmentally superior alternative would necessarily require a new dining facility. Even if a new dining facility would be needed to accommodate the environmentally superior alternative, such a new facility would have the advantage of being new and therefore having a long expected life span. Owing to its age, the Vista Grande Cafd will need to refurbished or rebuilt at some point in the future during the lifetime of the proposed facilities. The cost of such a remodel or replacement is not known, but it is entirely likely that the cost would be comparable to the cost of building a new dining facility at this time to serve a residential complex at the Z / https: / /calpolydining .com/diningprograms /faq.asp PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -14- 2 4 6 7 8 9 10 11 I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 environmentally superior alternative site. Accordingly, while a new dining facility may cost more i now, it may not substantially add to the Housing Program's long term budget. "It is the [agency's] responsibility to provide an adequate discussion of alternatives." CEQA Guideline 15126(b). The FEIR must include "detail sufficient to enable those who did not I participate in its presentation to understand and to consider meaningfully" the alternative analysis. I (Laurel Heights, supra, 47 Ca1.3d 375, 404 -405). It was the EIR's responsibility to include Isufficient detail to enable the public to understand why in the University's judgment a new dining facility would be needed, and whether in the same reasoning was employed in the past for each of I the other residential facilities. The FEIR fails to discuss with any meaningful detail the alleged need for a dining facility or the assumptions underlying the cost estimate, and nothing in the administrative record cures this failure. The assumption that a new dining facility would be needed is not supported by substantial I evidence. Even the Trustees appear to agree, as the finding in support of rejecting the Ienvironmentally superior alternative asserts that "this alternative may require additional components such as a new common facility." AR 1:45 (emphasis added.) b. The FEIR's analysis of the cost of developing the environmentally superior alternative site ignores evidence of the additional cost associated with developing the Slack Street site The FEIR failed to adequately analyze the cost of developing the environmentally I superior alternative and compare that cost with the cost associated with developing the Slack Street site. The evidence in the record shows that even if, in some respects, the environmentally superior I site may cost more (e.g. a new dining facility, new bridge, etc.), construction of the dormitories on A this site would result in other savings as compared to the selected site. The FEIR and Trustees failed to account for these potential savings. As such, the Trustees failed to proceed in the manner required by law because the FEIR failed to include an apples -to- apples comparison. To begin with, it would be cheaper to extend utilities to the environmentally superior site because it is closer to the campus core. According to the Master Plan, owing to recent improvements and construction of major facilities in the instructional core of the campus, provision of utilities is less expensive closer to this core. "The Utilidor project defined the core provision of services. Growth.at any significant distance from the campus instructional core will require more expensive utility extensions." Master Plan, at AR 12:3409. The FEIR's analysis of cost associated with the environmentally superior alternative never disclosed this fact and failed to consider that provision of utility extensions to lots H -12 and H -16 may be considerably less PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -15- 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expensive compared to the cost associated with the preferred site. Without explanation, the FEIR I simply assumed that the cost of extending utilities would be the same for both sites. Likewise, the University never considered the significant cost associated with massive grading and exportation of fill that will be required to prepare the Slack Street site, but not the environmentally superior alternative. As stated above, soil borings taken at the site revealed the presence of artificial fill at depths ranging from 3.5 to 14 feet in seven of the eight borehole locations. AR 6:1642. The undocumented nature of the existing fill poses a "moderate risk of unstable geologic conditions ..." in addition to "potential for differential settlement". AR 6:1649. Undocumented fill is unreliable for support of foundations or other improvements in its current condition because at the time of its placement, standards for compaction and construction were not as stringent as they are today. AR 6:1642. "Particular consideration is needed to avoid potential impacts associated with these conditions, and special design considerations in proposed foundations and footings would need to be implemented to avoid risks of structural damage." AR 6:1649 According to The FEIR, at least 5 feet of soil will need to be excavated across the entire 12 -acre site, necessitating the removal of at least 2.6 million cubic feet of dirt. AR 6:1513. The EIR explains that in order to assure safety the following geotechnical recommendations must be implemented the removal of all existing undocumented fill in building areas; examination of underlying soils by the soils engineer prior to the placement of any new fill material; over - excavation, scarification, moisture - conditioning, and re- compaction of areas to provide a minimum of 18 inches below bottom -of -slab elevation (12 inches where bedrock is present) to consist exclusively of non - expansive soils; a requirement that each individual building be founded on either footings in bedrock or in compacted fill, but not a combination of the two; consultation with a soils engineer during design phase and construction; as well as a number of specific requirements related to site preparation, grading activities, utility trenches, foundations, interior slabs -on -grade and exterior flatwork, retaining walls, hot mix asphalt pavement sections, and drainage and maintenance facilities. The full report is provided in Appendix D for reference. AR 6:1645 -1646. Implementation of these recommendations will substantially add to the cost of I developing the Slack Street site, but not the environmentally superior site. Likewise, because of the shallow groundwater conditions, the construction of the parking lot at the Slack street site would need to be dewatered, necessitating the construction of sumps and deployment of pumps to divert water away from the site. AR 26:7284. The development of the PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -16- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 parking will also require unusually deep piers, subsurface structures to divert groundwater flow, and other potentially costly construction measures in order to deal with the shallow groundwater. In contrast, the environmentally superior site does not contain undocumented fill and will not require massive grading; the FEIR explains that "[t]he site is generally level to slightly sloping. Soils are Los Osos loam and Salinas silty clay loam. These soils are moderately to highly I expansive, and would require preparation of the site for foundations and concrete. There are no Iother known hazards associated with the underlying geology on site." AR 6:1740. It should be noted that the selected site also contains soils that are moderately expansive. Accordingly, it appears that owing to the unique circumstances of the selected site, ! including the presence of undocumented fill at varying depth, ground preparation of the site will be considerably more costly compared to the preparation necessary for the environmentally superior site, which does not contain any undocumented fill and will not require major excavation and grading to accommodate a subterranean parking structure. Based on the O'Halloran 100% Schematic Design Cost Estimate, overall site preparation for the Slack Street site would cost over $20,000,000. AR 38 :10863. While the record does not include any analysis of sitework estimates for the environmentally superior alternative, based on the foregoing, these would be appear to be considerably less than $20,000,000. " "The EIR shall include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project." (Guidelines, § 15126.6, subd. (d).)" (Preservation Action Council v. City of San Jose (2006) 141 Cal.AppAth 1336, 1354. ( "PAC "). The FEIR in this case did not include sufficient detail and analysis to allow meaningful evaluation, analysis and comparison between the proposed sites. The FEIR therefore must be set aside. (Id., at 1357.) ( "The City violated CEQA by failing to ensure that the FEIR adequately analyzed the potentially feasible and environmentally superior reduced -size alternative and failing to make a specific finding, based on substantial evidence, regarding the feasibility of the reduced - size alternative. ") The FEIR's failure to adequately compare the construction costs associated with each site also undermines the Trustees finding that the environmentally superior site is economically infeasible. Accordingly, the finding is not supported by substantial evidence and must be set aside. D. The Trustees rejection of the environmentally superior site amounts to an abuse of discretion. The findings in support of rejection of the H- 12/11-16 alternative location appear at AR PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE - 1 7 - 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1:45. These findings track the FEIR's revised discussion of this alternative. AR 2:472. These I findings are inadequate and violate CEQA because the assumptions underlying these conclusions are not supported by substantial evidence. The text of the FEIR and findings, moreover, are misleading and confusing, making it appear that the additional cost associated with this alternative is in fact greater than $25,000,000. 1. Contrary to the FEIR and Trustees fmdings the University had no set budget for this project Both the findings and the FEIR assert that the University has a set budget for the Project. I This is not borne out by the evidence in the record. AR 2:471 ( "The University has a set budget to complete the entire project. "); AR 2:472 (development of dining facility would "[exceed] the available budget. ") The evidence shows the project's roughly $199 million budget was not preset i based on such factors as the University's availability to recoup the cost of construction over time or state - mandated limit; rather, the budget was based on a fairly detailed estimate of the cost of the project as proposed for the Slack Street site3. Cal Poly's Housing Proposal Submittal explains that the housing program is "self- I supporting and is operated through the Housing Trust Fund." AR 38:11032. The principle source Iof revenue for the Program is license fees collected from students who reside on campus. Ibid. I The University plans on increase these fees by 5% annually until 2028 -29, and at a rate of 2% thereafter. The net income is distributed to housing reserves. This report further explains that "the estimated cost to purchase the SHS project development is approximately $198 million." AR 1 38:11033. In other words, the approximately $200 million is based on the University's estimate of the cost of this project at this location, and not a pre- ordained set budget as the FEIR suggests. See, also AR 38:11048. According to Cal Poly's projections, the University will fold the management of the new facilities in with its current program and initial rates for the new housing facility is expected to be $8,2111, which is in line with the rest of the campus. Ibid. See, AR 38:10953. The same could be done for the environmentally superior site. Even if the environmentally superior alternative would exceed the University's current 3 It is interesting to note that unlike other capital outlay projects before the Trustees on the same day as the Cal Poly Project, our University's proposal did not include_ a detailed budget break down and cost comparison with other similar projects implemented at other locations. See, eg., AR 2:335. PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -18- 1 2 3 4 5 6' 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 271 28� 1 budget for the project, the evidence does not support the conclusion that the addition of 1 $25,000,000 would render the Project infeasible. As the University's own documents show, the IUniversity has been enjoying a considerable net profit from the operation of the Housing Program. 1 In 2014 -2015 school -year, for example, the expected net profit is over $4,500,000. AR 38:11034. By 2048 -2049, the expected net profit is over $81,000,000. AR 38:11037. Even with the addition of the new proposed facilities, the Housing Program will continue to operate profitably; the combined Housing (i.e. new SHS plus existing housing) projected for 2048 -49 is $92,000,000. AR 38:11046. Even standing alone, the new student housing project would be profitable by 2037 and I will earn $4,329,000 per year. Accordingly, the contention that an adding $25,000,000 to the I initial start-up cost would make the project economically infeasible is not supported by the evidence in the record. It is well - settled that economic infeasibility must be supported by relevant economic evidence. (Unload Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 5 87,601.) "Before a legislative body may approve a project with a significant environmental impact, it is "required to make findings identifying ... the `[s]pecific ... considerations' that `make infeasible' the environmentally superior alternatives." (The Flanders Foundation v. City of Carmel-by-the- Sea (2012) 202 Cal.App.4th 603, 620 -621.) The finding must be based on substantial evidence." (Id., at 621.) The mere fact that an alternative may be more costly does not automatically make it infeasible. (Uphold our Heritage, supra, 147 Cal.App.41h at 600.) ( "Economic unfeasibility is not measured by increased cost or lost profit, but upon whether the effect of the proposed mitigation is such that the project is rendered impractical. ") As the University's projected profits demonstrate, the addition of $25,000,000 would not render the Project "impractical" as the findings suggest. Some cases have cast the issue of economic feasibility as "not whether the alternative is Iless profitable than the project as proposed, but whether the reduced profitability of the alternative I is "`sufficiently severe as to render it impractical to proceed with the project. "' (Save Round I Valley. supra, 157 Cal.App.4th at 1461.) Again, there is no evidence here that reduced profitability caused by the addition of $25,000,000 would be so severe as to make the project impractical. Nor is this a case where the public agency has determined an alternative is infeasible based on a policy decision rooted in the agency's discretion on how to allocate funds pursuant to a fixed budget or whether to incur a liability. The Flanders Foundation v. City of Carmel- by -the- PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -19- 2 4 3 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I Sea (2012) 202 Cal.AppAth 603, 621.) There is no competition for the additional $25,000,00 and I the Trustees would not be allocating the $25,000,000 for another project; the addition of this amount to the project budget would not create a financial liability for the Trustees. 2. The H- 12/H -16 site would achieve all Legitimate project objectives As we explained above, the environmentally superior alternative would achieve all legitimate objectives. The objective of co- locating freshman dormitories was never mentioned in the EIR or any iteration of the Project prior to the release of the Final EIR. In any event, the environmentally superior alternative is capable of co- locating more than 1400 freshmen, accordingly this objective would be substantially achieved. Finally, the environmentally superior alternative would be superior in terms of achieving the objective of locating the facilities closer and more accessible to the campus core and instructional facilities. Moreover, as explained above, the FEIR overstates the additional cost of developing the environmentally superior alternative by ignoring the additional cost of developing the Slack Street necessitated by the presence of undocumented fill and shallow groundwater. E. The Trustees' finding that the project's significant air quality imQact is "unavoidable" is not supported by substantial evidence. The Project would cause a significant air quality impact. According to the FEIR, [t]he construction of the project would result in emissions of reactive organic gases and nitrogen oxides (ROG +NOx) in excess of [San Luis Obispo Air Pollution Control District] standards. Construction- related ROG +NOx emissions are largely due to the application of architectural coatings. Impacts are considered potentially significant and mitigation is incorporated. AR 6:1629. The FEIR discloses that the Project's daily emissions may exceed the applicable standards { by almost than 100 %. "Construction emissions could still exceed the daily SLOAPCD thresholds for ROG +NOx despite mitigation, with a maximum estimated potential emissions of 265.46 pounds per day (lbs /day) of ROG +NOx compared to a SLOAPCD threshold of 137 lbs /day." AR 6:1629. The Project would also exceed the applicable quarterly standards for ROG +NOx. AR 6:1631. This is particularly significant given the proximity of the adjacent Teach elementary school. These emission are primarily from VOCs [volatile organic compounds] associated with the architectural coatings phase of the proposed project, which account for 237.11 lbs /day of the PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -20- I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I modeled maximum of 265.46 lbs /day of ROG +NOx. Ibid. In order to reduce emissions below these maximum daily limits, application of architectural coatings would need to be limited to no more than three hours per day. Ibid. "Currently, based on CaIEEMod defaults, it is assumed that approximately 20 days would be required to apply the architectural coatings — extending the time period to 40 days would approximately halve maximum daily VOC (and hence ROG +NOx) emissions from the project." Ibid. The FEIR concluded that, limiting application of coatings to less than 3 hours per day "is not considered feasible, as it would be an inefficient and insufficient time period to mobilize crews and achieve effective application of coatings." " "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental; social, and technological factors." (Pub. Res. Code § 21061.1.) The FEIR's claim that extending the period of application of architectural coatings by 20 days in order to reduce the Project's significant air quality impact to a less than significant level is "infeasible" is inconsistent with CEQA's definition of feasibility. According to this definition, a mitigation I measure cannot be considered "infeasible" merely because from the stand point of construction planning it may be deemed "inefficient ". Based on the above - stated reasoning, the Trustees concluded the significant air quality impact could not be feasibly mitigated to a less than significant level because extending the time period for applying architectural coatings would be infeasible because "(a) extension of the construction period, increasing other pollutants, and (b) limiting of application periods to three hours per day." AR 1 :22. This "explanation" is not supported by substantial evidence. To begin with, extending the coating application period will not, as this finding suggests, extend the construction period or increase other pollutants. As explained by the FEIR, the architectural coating would be applied as construction of each building is completed: "the application of architectural coatings will occur sporadically as individual buildings are completed." AR 6:1632. The FEIR does not even hint that extending the period over which the architectural coating is applied could extend the construction period, thereby increasing other pollutants. The Finding also baldly claims that reducing the daily applications to three hours renders this mitigation measure "infeasible." This contention is not supported by any substantial evidence, and is not self - evident. There is no evidence in the record to show, for example, that limiting daily 1 applications to three hours is so cost - prohibitive as to render the project economically infeasible PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -21- 4 5 6 7 10 11 12 13 14 151 16 17 18 19 20 21 22 23 24 25 26 27 28 even if it would be less efficient. Accordingly, the Trustees finding that mitigation of the Project's significant air quality impact to a less than significant level is infeasible must be set aside. F. The Project is inconsistent with Cal Poly Master Plan "The 2001 Cal Poly Master Plan is the primary document governing land use and capital improvements on campus through the year 2020." AR 6:1555. Accordingly, as explained by the FEIR and the Campus Land Use and Design Guidelines, all new buildings on campus must comply with the adopted Master Plan. AR 4963. "Compliance with the Master Plan is not limited to reconciling building locations with the map, but includes meeting the relevant planning principles contained within the text of the adopted plan." Ibid. Before amending the Master Plan, this project was inconsistent with both the development maps and the relevant guiding and planning principles included therein. As explained in the Statement of Facts above, in the course of approving the Project, Trustees approved amendments to the map, eliminating the sites the Master Plan had identified for citing freshmen dormitories. See, Map at AR 13:3485 for a description of sites that had been selected for freshman dormitories by the Master Plan. The Trustees did not, however, amend the Master Plan's guidelines and planning principles that had informed the Master Plan's principles and guidelines for selecting sites for residential facilities. As a result, the current Project is inconsistent with the Master Plan. The Master Plan's land use element contains seven articulated principles to guide the future development of the campus. These principles include the principle of "compatibility ", which provides: Cal Poly recognizes that the institutional nature of a campus is different in scale and intensity from other urban, suburban and rural activities. Thus, this principle calls for establishing and maintaining a buffer between such uses as undergraduate student housing and single - family residential neighborhoods adjacent to campus. At the same time, faculty and staff housing might be built near existing single - family residential neighborhoods. This principle also recognizes that some instructional and related activities generate traffic, noise, light, odors, and other impacts that may affect surrounding neighborhoods as well as other instructional and related activities on campus. AR 12:3419 (emphasis added) The "compatibility" principle recognizes that because undergraduate student housing and single - family residential neighborhoods are inherently incompatible and residential neighborhoods PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -22- 1 2 3 4 5 a 101 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 281 must be buffered from student housing facilities as the campus continues to develop. The "Residential Community" chapter of the Master Plan notes that sites that had been selected for residential facilities (which this Project substantially revised by clustering all freshman Ifacilities in a single location adjacent to the intersection of Slack Street and Grand Avenue) placed I students "in a unique setting between the surrounding natural environment and the more urbanized academic core. This arrangement retains a buffer between undergraduate students residences and surrounding neighborhoods in San Luis Obispo." AR 13:3487 (emphasis I added). Thus, the Residential Community chapter reinforces the idea that sites selected for I undergraduate residential facilities must include a meaningful buffer. The 2001 Master Plan actually envisioned a very limited student housing facility adjacent to Yosemite dorms on the southeast corner of main campus adjacent to Slack Street. AR 13:3557. Despite the small size of the proposed residential facility —137 beds- the Master Plan took care to explain that the plan for this limited residential facility "provides for a buffer between students and adjacent neighborhood." Ibid. This buffer was provided by a proposed "visitor- oriented ancillary facility, or additional conference facilities." Ibid. The Master Plan envisioned a series of recreational athletic fields for a major portion of the Project site at the intersection of Slack Street and Grand Avenue. In recognition of and in order to minimize the potential impact of the operation of these recreational fields on the neighborhood, the Master Plan identified this area as "an unlighted and informal recreation area." AR 13:3498. The type of development is in sharp contrast to the intense, high- density project the Trustees eventually approved on this site. In cursory fashion, the Recirculated Draft EIR recognized that the Master Plan compatibility principle requires the creation and maintenance of a buffer between the University residential halls and the residential community to the south of campus. AR 6:1574. ( "Compatibility — Establish and maintain buffers between the campus and neighborhoods. Mitigate impacts. ") The DEIR recognized that the Project was only potentially consistent with this and I other related Master Plan Land Use policies. Addressing the buffer issue, the FEIR claimed that "the EIR outlines several issues related to neighborhood proximity, including nuisance noise, air quality, and traffic. Mitigation is proposed to alleviate impacts, and project design includes trees and setbacks to provide a buffer to neighbors." Ibid. The FEIR's discussion of the impact on the residential neighborhood is patently misleading Iand inadequate as it misrepresents both the Project's impacts on the neighborhood and the extent PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -23- 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to which the impact on the neighborhood would remain significant even with mitigation. As discussed above, the FEIR and the Trustees concluded that even with mitigation, the Project would result in significant impacts on aesthetics (due to obstruction of mountain views and the Project's incompatibility with the character and scale of the neighborhood) and air quality. This discussion is also inadequate to the extent that it makes no attempt to analyze whether the proposed setback and landscaping would provide the type of buffer required by the Master Plan. The FEIR Master Response No 3 also includes a brief discussion of the proposed buffer. Here, the FEIR implies that the Project will establish an adequate buffer by creating a landscaped 35 foot setback from Slack street. AR 2:541. Master Response 3 also claims that structures would be constructed more than 200 feet from the closest residences, and major outdoor gathering spaces "may" be located at a greater distance from homes. This discussion is inadequate, however, to the extent that it does not include any analysis of whether and the extent to which these structural features of the Project would provide a meaningful buffer between the student housing facility and the neighborhood. (Concerned Citizens of Costa Mesa Inc. v 32nd Dist Auricultural Assn. (1986) 42 Ca1.3d 929, 935.) ( "To facilitate CEQA's informational role, the EIR must contain facts and analysis, not just the agency's bare conclusions or opinions. This requirement enables the decision - makers and the public to make an "independent, reasoned judgment" about a proposed project. ")The proposed landscaped 35 -foot setback does not satisfy the Master Plan's requirement that campus development maintain an adequate buffer. This setback may marginally soften the visual impacts of the proposed multi -story buildings fronting Slack Street, but will do little to reduce the noise, traffic and other "quality of life" impacts that proposed freshman facility would have on the adjacent residential neighborhood. Additionally, a 35 -foot landscaped setback will not mitigate the massing of 4 and 5 -story structures at an elevated grade. In any event, the Trustees concluded that even with mitigation, the visual impact of the out -of -scale student housing would remain significant from the neighborhood's vantage point and public views from Grand Avenue. The EIR acknowledged a number of issues related to nuisance created by locating residential facilities immediately adjacent to a residential neighborhood. Master Response to Comments No. 2 refers to these as "nuisances associated with Students." AR 2:540. As explained in this response, the FEIR concluded that "student behavior may have certain social effects" that are not quantifiable. Likewise, the EIR analyzed nuisance created by student drinking and moving through neighborhoods, causing disturbances. AR 2:541. Again, the FEIR did not deny that these PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -24- 1 2 3 4 5 6 7 8 91 10 11 12 13 14 15 16' 17 18 19 20 21 22 23 24 25 26 27 28 impacts are likely, but concluded these impacts were not embraced by CEQA. The proposed 35 foot setback will do nothing to address the type of neighborhood impacts that could result from proximity of freshmen to the neighborhood. The FEIR must be revised because the analysis of the Project's consistency with the "compatibility principle" and the corresponding "buffer" requirement is inadequate. The Trustees abused their discretion to the extent they failed to make a specific finding regarding the adequacy of the setback as a buffer. Even if such a finding could be implied — a premise with which Petitioner strongly disagrees — such an implied finding must be set aside because it is not supported by substantial evidence in the record. V. CONCLUSION Petitioner and its members wholly support the construction of additional student housing on campus. However, consistent with the adopted Master Plan, they believe undergraduate dormitories are more suited for the interior of the campus, away from the residential neighborhood. Accordingly, and based on the foregoing, Petitioner's respectfully ask that the Court grant the Petition for Writ of Mandate and order the Trustees to reconsider the feasibility of the environmentally superior alternative. DATED: January 16, 2015 LAW OFFICE OF BABAK NAFICY By: Babak Naficy Attorney for Petitioner PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -25- I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17. 18 19 20 21 22 23 24 25 26 27 28 impacts are likely, but concluded these impacts were not embraced by CEQA. The proposed 35 foot setback will do nothing to address the type of neighborhood impacts that could result from proximity of freshmen to the neighborhood. The FEIR must be revised because the analysis of the Project's consistency with the "compatibility principle" and the corresponding "buffer" requirement is inadequate. The Trustees abused their discretion to the extent they failed to make a specific finding regarding the adequacy of the setback as a buffer. Even if such a finding could be implied — a premise with which Petitioner strongly disagrees — such an implied finding must be set aside because it is not supported by substantial evidence in the record. V. CONCLUSION Petitioner and its members wholly support the construction of additional student housing on campus. However, consistent with the adopted Master Plan, they believe undergraduate dormitories are more suited for the interior of the campus, away from the residential neighborhood. Accordingly, and based on the foregoing, Petitioner's respectfully ask that the Court grant the Petition for Writ of Mandate and order the Trustees to reconsider the feasibility of the environmentally superior alternative. DATED: January 16, 2015 LAW OFFICE OF BABAK NAFICY t By: Babak Naficy Attorney for Petitioner PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE -25- # 461( 2 S LEANING PINE EQUNM AYR • � AMOlENM ti 371 I 4. QNYON PARIWR P �, 36 s r 460 &wg Ep Vt4ovt➢ !L■ 17)f Fic l sPOlers coWLEx " �" (DI :in"D" • ' 1771H „7,1 1� IiUASNA P LY CA.NYON It VIEUIGE � Al;tNA YESTA+ 1 1 161 Af1'Q,, uNSSEN FIELD 13 DRMIW 1 ® lWFUNII lISElYpN ITIC i 160 IAODflI STADNIM i ALIr 7 CAL POLY 0 pill California Polytechnic State University g; gb 170 San Luis Obispo, CA 93401 111 qxk } .s. ;' , : � '3 �� � !� ►.i.� L�6� CEIRO VISTA (605) 756 -1 : 17uv + � WWW.MoPs-calpoly.edu ii� rase ►i7 � �G 4AAr Is ?' Wt � wI + BLUE EMERGENCY PHONES 19 ,OP ® • BUS STOPS IV � 1 v STREETS s „ 1 E I'J DIIAIO yr V41 100 f yy 18p j PAIMAR �x *■. twG! �! FL NI !1 PLATA X04 103 v agBNll��lS ' BaR III YA E `pr ( uSSEN YLNIrrN+r RI -b- IF IN L 3 a i li !41D ��i��'HHHIII NUILDINDf FANNINDIOiS Nil AO * V - lESP n UNN i0 * AIKING cif Ntt! 1E t LIi° 10d' rlIMIrY _ N1I . to IU(rA FACULTYISTAIF O A M i M FA F GENERAL �. LAST IA�SN7 p Ip7.IOY MUIR AH7DFNTIAI ^ DtXIFl LAWN �� 0 E $ T.S 'I I 03 'l ® -_ # y� . MInD I(HIn �T,�fq'r L _ NON o N pp� M Q -F jLq M l f PARNIND ICONS © GINIUIFAENIND C( It Ss it (OMP' I ITt 40 tiD, 1i PARRINDMITSIS NGRWIlr �. WEE :4 ENAYA fr SPONSORED OUIST WE�X '¢ Atli 5f � 6 PERMIT DISPENSER '. TrfLATR••a.E, O DISABLED 3 kl II N f� C1 `.�O NL•tt V MOTOI(Y(LL I Nor Tg A �! 0�vrAV u�& ( N o r AW UPDATED: 09 /1014 A RUN �. `* �� D 4 y S N' 113 N 6t , NM� +r�1InMApr. E SPANOS _ PENT TAOIUM (EE° S1 � A 13O aS a c `+ UkjESIfY ANDrI FASN(Uy/ c!: Qh.. • 11b 1i piGrrrl � POOL r I 4 uDMa ;,,f PpDU O FE A t COUNTS Wait�S :^ 6 H cu �a {1Q1 � cr as (AD itFf IN (} It TRACK.: y • nswal's IMra 1 CITY OF SAN LUIS OBISPO 200 MITERS FROM 1 O t CAL POLY VIT T PROOF OF SERVICE BY MAIL Alliance of SLO Neighborhoods v. The Board of Trustees of the California State University, et al. San Luis Obispo County Superior Court Case No. 14CV -0334 I am employed in the County of San Luis Obispo, State of California. I am over the age of 18 and not a party to this action. My business address is: 1504 Marsh Street San Luis Obispo, California 93401 On January 16, 2015 1 served the foregoing: OPENING BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE on the interested parties below as follows: SSL LAW FIRM LLP Diane Hanna j Elizabeth Bridges 575 Market Street, Suite 2700 San Francisco, CA 94105 El REGULAR MAIL I placed the envelope for collection and mailing on the date shown above, at this office, in San Luis Obispo, California, following our ordinary business practices. I am readily familiar with this office's practice of collecting and processing correspondence of mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service in a sealed envelope with postage fully prepaid. I declare under penalty of perjury, under the laws of the State of California, that the above is true and correct and that this declaration is executed on January 16, 2015 at San Luis Obispo, California. Barbara Heki