HomeMy WebLinkAbout20150506_Ruling_14CV-03341
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FILED
MAY 6 6 2015
EKY r 1( "f•.�
E6n ro�vn, die u�y Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN LUIS OBISPO
ALLIANCE OF SLO NEIGHBORHOODS,'
Plaintiff/Petitioner,
[y
THE BOARD OF TRUSTEES OF THE
CALIFORNIA STATE UNIVERSITY, and
DOES 1 -20,
Defendants/Respondents.
Case No.: 14CV-0334
RULING AND NOTICE OF RULING
ON PEREMPTORY WRIT OF
MANDATE
Petitioner Alliance of SLO Neighborhoods ("Alliance") filed a Petition for
Peremptory Writ of Mandate and Complaint for Declaratory and Injunctive Relief on June
20, 2014. The Petition for Writ of Mandate came on for hearing on April 20, 2014. Prior to
that hearing, this Court posted a tentative ruling which is attached hereto as Exhibit "A"
("Tentative Ruling").
The Alliance was represented at the hearing by Babak Naficy. Respondent Board of
Trustees of the California State University ("Board of Trustees") was represented by Diane
K. Hanna and Elizabeth L. Bridges of the SSL Law Firm, LLP. The matter was argued and
submitted. At oral argument, the Alliance addressed two of the grounds set forth in the
U
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moving (and opposing) papers relating to claimed deficiencies in the Final EIR ("FEIR")
Accordingly, this Ruling will address only those arguments. The Tentative Ruling is
incorporated and adopted in full, as supplemented by this Ruling.
The Board of Trustees Could Reject the Alternate Site for Failure
to Achieve a Primary Objective.
In its Petition and Complaint, in its moving papers, and again during oral argument,
the Alliance asserts that the Board of Trustees' claimed primary objective of co -locating
freshman housing was either pretextual or unsupported by substantial evidence. After again
reviewing the case law, and the arguments of counsel, this Court disagrees with the Alliance
on both counts. As pointed out by the Board of Trustees at the hearing, there are numerous
references in the Administrative Record to the goal of co -locating freshman housing. They
include the following:
DEIR & RDEIR
(November 25, 2013 — 6:1739; 6:1731)
(February 12, 2014 —10:2730; 10:2725)
"The proposed project location was selected in part because of proximity of
the site to other existing freshman housing and existing communal dining
facilities ... The Housing Department ... prefers to maintain separation
between upper -division and freshman housing when feasible ... "
An early alternative to Project, located in H-16 parking lot, was rejected
"because of [its] lack of proximity to existing communal dining facilities and
student activity centers at the University Union and Recreation Center. [This
site] is also distant from existing freshman housing, impacting program
coordination. "
Community Forum Presentation
(December 19, 2013 — 37:10663-76)
Various alternative sites are undesirable because they would "segregate first
year [students]" or "lack all programming advantages of co -location with
balance of first years. "
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Email to Neighbors
(January 15, 2014 — 37:10683-4)
"Grand Avenue location is the only site that allows us to keep first year
students clustered together ... "
VP Student Affair's Q&A Presentation
(Undated — 39:11313-11314)
• "This location better enhances the student experience by having first time
freshman living in close proximity of each other ... "
• "Clustered first year student halls allow for more intentional and focused
alternative non-alcoholic evening and weekend programming. "
VP Student Affair's Housing Success Presentation
(Undated — 39:11385-11389)
Discusses academic benefits of clustering freshmen and cites research
supporting clustering freshmen.
FEIR & CEQA Findings
(May 8, 2014 — 2:455)
(March 5, 2014 - 1:15-16)
Project Objective: "Co -locate freshman housing in a location with easy
access to campus amenities such as dining and the recreation center."
Accordingly, there is substantial evidence contained in the Administrative Record
which would refute a finding that this claimed objective is merely pretextual. In addition, at
least one appellate case has recognized a similar policy objective as being appropriate. In
California Oak Foundation v. Regents of the University of California (2010) 188 Cal.App.41h
227, 273, the appellate court referenced the goal "to promote and inspire relationships vital to
the health of the University" as one of several "primary objectives" in deciding on a location
for construction of a stadium. The petitioner in that case challenged that objective as "so
vague and amorphous that they could be fulfilled by almost any project, rendering them
useless for their intended purpose of assisting evaluation of alternatives". (Id. at 273.) In
response, the court held that "we acknowledge certain of the stated objectives ... are stated
broadly. However, when considered as a whole, we conclude the objectives chosen by the
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University do in fact serve the requisite purpose of assisting the development and evaluation
of a reasonable range of alternatives ... This is just what CEQA requires". (Id. at 273-274.)
By analogy, if courts are to consider the policy objective of `promoting and inspiring
relationships vital to the health of a university' as a reasonable goal, then it would appear that
the policy objective of co -locating all freshman (or as many freshman as possible) in a
discrete and limited area of the university campus is also a reasonable goal.
Similarly, this Court disagrees with the Alliance's interpretation of In re Bay -Delta
Programmatic Envtl. Impact Report Coordinated Proceedings (2008) 43 Cal.4" 1143.
While that case clearly stands for the proposition that a project proponent cannot give
purpose to an artificially narrow definition, the Alliance has failed to provide convincing case
authority for the proposition that, in this case, the goal of co -location of freshman housing is
artificially narrow. Although the Alliance argues that by locating these dormitories at the
Alternate Site at least 1,475 freshman students would be "located together", this is a policy
argument that the Board of Trustees could have accepted or rejected in making its decision.
Ultimately, the decision as to the best location for this project, and whether it complies with
reasonable policy objectives, is within the province of the Board of Trustees. This Court
cannot substitute its own judgment on that point. Instead, under current law this Court must
defer to the Board of Trustees' finding that the Alternate Site does not meet reasonable
policy objectives if that decision is supported by substantial evidence. Here, such evidence
plainly exists within the record.'
The Court finds the case of Sierra Club v. County of Napa (2004) 121 Cal.App.4`h 1490 to be instructive on
this point. In that case, the project proponents' stated objectives in constructing a new winery facility
included at least two objectives to "locate the new facility in close proximity to [an] existing ... facility so
that the same winemaking staff can efficiently and effectively manage both facilities" and to "minimize
traffic impacts and operating costs by locating the distribution warehouse adjacent to the new bottling
facility". Id. at p. 1499. In that case, the appellate court held that the project proponent had a reasonable
basis for establishing the objective of co -locating facilities.
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The Board of Trustees Could Reject the Alternate Site Even in the Absence of
Economic Infeasibility
The Alliance argues that the Administrative Record is deficient due to the lack of
substantial evidence supporting the Board of Trustees' finding of economic infeasibility of
the Alternate Site. This argument is premised upon an argument that the Board of Trustees
failed to quantify (and therefore consider) likely additional costs in excavating and
addressing soil conditions at the Preferred Site, as compared to the Alternate Site. The
Alliance also claims that the Administrative Record lacks the required factual detail to
support the estimated increased costs of construction at the Alternate Site.
To be sure, this Court is concerned about these arguments. As pointed out in the
Tentative Ruling, the Board of Trustees relies primarily upon a one-page worksheet showing
projected costs of a new dining facility, a new bridge, additional costs for taller buildings,
etc. However, the Administrative Record fails to reveal the source of those cost estimates.2
The Alliance relies heavily on Preservation Action Council v. City of San Jose (2006)
141 Cal.App.41h 1336. In that case, an alternative to construction of a big box retail store was
building a smaller store. In response, the project proponent argued that the reduced size was
infeasible due to "market demands" of the urban area in which the store was to be
constructed, an inability to stock an appropriate amount of inventory in a smaller store, and
competitive disadvantage. Other than making those statements, however, there was virtually
no data provided. No evidence was provided regarding the size of other "competing stores".
The record was unclear as to the likely size of the "reduced store", and no data was provided
regarding market demands or stocking requirements. Under those circumstances, the court
held that the EIR lacked "sufficient information about each alternative to allow meaningful
evaluation, analysis, and comparison with the proposed project." (Id. at 1354.)
The facts of this case are substantially different. Here, relatively detailed economic
information is contained in the Administrative Record, including costs per square foot for the
2 The Board of Trustees has identified the author of that information, but concedes that there is nothing in the
Administrative Record which ties the worksheet to that author.
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additional construction requirements of the Alternate Site. In addition, as the Board of
Trustees points out, the Alliance has failed to successfully challenge the need for a new
bridge, or for taller buildings, given the limitations of the Alternate Site. Nevertheless, at
least one case cited at oral argument by the Alliance raises cause for concern. In Center for
Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4`h 866, the appellate
court found an EIR discussion of economic infeasibilty for construction of an enclosed
composting facility to be insufficient where it was based solely on the cost of one other
enclosed composting facility in a nearby community. In that case, the appellate court
affirmed a lower court's finding that the analysis of economic costs was deficient, holding
that "[B]ecause the FEIR ignores all enclosed facilities besides the Rancho Cucamonga
facility, however, there is no meaningful comparative data pertaining to a range of economic
issues." (Id. at 884.) By analogy, a fair argument could be made that the discussion of
economic costs in this case is deficient because the Administrative Record fails to show
whether those projected economic costs are based on only one other project (or, as contended
by the Alliance, on no project at all).
After careful consideration, however, this Court concludes that this claimed
deficiency is not enough to justify granting the Petition for at least two reasons. First,
SPRAWLDEF v. San Francisco Bay Conservation and Development Commission (2014) 226
Cal.App.41h 905, stands for the proposition that case law "does not require any particular
economic analysis or any particular economic data, but requires generally `subcontext' that
allows for economic comparison". (Id. at 918.) Citing the case of Uphold Our Heritage v.
Town of Woodside (2007) 147 Cal.App.4th 587, the appellate court noted that the Woodside
court "declined to limit the ways in which economic infeasibility could be shown, noting
they could be numerous and varied depending on the circumstances." (Id. at 919.) The
SPRAWLDEF court also emphasized that "What is required is evidence that the additional
costs for lost profitability are sufficiently severe as to render it impractical to proceed with
the project". (Id. at 918.) Here, substantial evidence in the Administrative Record does
show a need to construct a new bridge and taller buildings. Substantial evidence also
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supports the claimed need for new dining facilities. Although the precise amount of such
additional costs is certainly open to question for those reasons claimed by the Alliance, there
does not appear to be any dispute that significant additional costs will be incurred for these
additionally required improvements and modifications. The standard seemingly set forth in
SPRAWLDEF, supra, would allow for substantially less precise economic data than that
seemingly required in Center for Biological Diversity, supra.
In the final analysis, however, there is a more important reason for rejecting the
Alliance's contention that the Petition should be granted based upon claimed deficiencies in
the analysis of the economic data. As correctly contended by the Board of Trustees, case law
is clear that there is nothing in CEQA which requires an EIR to discuss the economic
feasibility of a project. See Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490,
1503; San Franciscans Upholding the Downtown Plan v. City and County of San Francisco
(2002) 102 Cal.App.4th 656. Instead, the Board of Trustees could reject the Alternate Site if
it failed to achieve noneconomic project goals, even if the economic analysis is deficient.
This point is emphasized by the recent case holding of The Flanders Foundation v. City of
Carmel -By -The -Sea (2012) 202 Cal.App.4th 603. In that case, community members
challenged a city council's approval of the sale of a historical mansion instead of adopting
the alternative of leasing that property, based upon an allegedly faulty economic analysis.
The holding is instructive and applies with equal force here:
[Petitioner] also contends that the City's infeasibility findings did not `prove
that lease of the Mansion to a single-family or non-profit organization could
not accomplish most of the project objectives'. That is not the standard. If it
were, a legislative body could never reject an alternative. The entire purpose
of the alternative's section in an EIR is to consider environmentally superior
alternatives that would `accomplish most of the project objectives'. The
DEIR did so. All of the alternatives would accomplish most of the project
objectives. Nevertheless a legislative body may reject such alternatives if it
properly finds them to be infeasible for any of the statutorily specified reasons
... the City did so here ... Substantial evidence supports the City's
infeasibility findings. (Id. at 622-623.) (Emphasis added.)
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Here, the Board of Trustees could lawfully reject the Alternate Site because it was
infeasible based upon noncompliance with the policy objective of co -locating all freshman
housing. Because the Board of Trustees could properly consider such a goal, and because
there is substantial evidence to support the finding that the Alternate Site fails to achieve this
policy goal, the Board of Trustees could reject the Alternate Site even if economic
infeasibility of the Alternate Site has not been established.
On this point, the determination of this case is governed by the holding in
SPRAWLDEF, supra. In that case, after a lengthy examination of the sufficiency of the
economic analysis, the appellate court held that:
[T]he Commission did not reject the reduced size alternative on economic
grounds alone. If an alternative is infeasible for noneconomic reasons, such as
a failure to achieve project goals, it can be rejected on that basis without any
economic feasibility analysis. (Id. at 921.)
For those reasons set forth in the attached Tentative Ruling and in this Ruling, the
Petition for Writ of Mandate is denied.
Dated: May 6, 2015
MJT: jn
8
MAPrTIN J. T GEMAN
Judge of the S erior Court
Alliance of SLO Neighborhoods v. Board of Trustees of the California State University
14CV-0334
Hearing: Petitioner's writ of mandate
Date: April 20, 2015
Alliance of SLO Neighborhoods (Alliance) brings this writ of mandate action challenging
the Board of Trustees of the California State University's (Trustees) adoption and
certification of a Final Environment Impact Report (FEIR) related to the development
and construction of a student housing complex on the southern edge of the Cal Poly
campus in San Luis Obispo (Project).
The Project includes seven multi -story residential structures, a parking structure, and a
central green space, all to be constructed near the intersection of Grand Avenue and Slack
Street (Proposed Site). (AR 6:1507) In November 2013, the Trustees prepared and
circulated a draft EIR (DEIR). (AR 6:1529) Based on public comments, the Trustees
then recirculated portions of the DEIR (RDEIR). (Id.) In the RDEIR, the Trustees
acknowledge their obligation under CEQA to consider potential alternatives to the
Project. (AR 6:1522-1523) One such alternate location is to construct the Project on
existing parking lots H-12 and H-16, located north of Highland Drive in the interior of
the campus (Alternate Site). (AR 6:1523; 6:1737-1738) The Alternate Site is considered
environmentally superior to the Proposed Site because it reduces impacts while still
retaining most of the Project's objectives. (AR 6:1524)
On May 8, 2014, the Trustees released the Final EIR (FEIR) which is comprised of the
RDEIR, an Errata to the RDEIR, and the Trustees' responses to comments. (AR 2:452-
6:1488) Chapter 5 of the RDEIR contains the "Alternatives Impacts Analysis" which
includes a discussion and analysis of the Alternate Site. (AR 6:1737-1741) In the RDEIR
and FEIR, the Trustees reject the Alternate Site because it requires the development of an
additional dining facility and places freshman housing near an area of upper -division
housing. (AR 6:1739) Additionally, the Alternate Site requires additional mitigation
measures to prevent adverse biological impacts to the Brizzolara Creek corridor. (AR
6:1739-1740) The FEIR concludes that the Alternate Site is not feasible because it: (1)
requires the development of dining and additional activity/gathering space; (2) requires
taller buildings, increased to 6 stories; (3) does not achieve the objective to co -locate
freshman housing; (4) requires the replacement of the bridge at Via Carta; (5) requires the
conversion of prime agricultural land; and (6) increases the project budget by
approximately $25,000,000. (AR 2:347-348; 2:544)
Alliance asserts that even though the Trustees determined the Project will result in
significant and unavoidable impacts on aesthetics, air quality, and traffic, the Trustees
rejected the Alternative Site which is an environmentally superior alternative. In its writ
Exhibit "A" Page 1 of 9
petition, Alliance claims the Trustees wrongly determined the Alternative Site was
infeasible and that the decision is not supported by substantial evidence. More
specifically, Alliance argues that the FEIR does not adequately evaluate whether or not
the Alternative Site is economically feasible and the Trustees' stated objective of "co -
locating freshman housing" is a pre -textual and overly narrow objective that was inserted
at the last minute into the FEIR by the Trustees to justify their rejection of the Alternative
Site. Alliance also claims the Project is inconsistent with Cal Poly's Master Plan and that
the Trustees improperly concluded that a significant air quality impact caused by the
application of coatings was "unavoidable."
The Trustees oppose the petition and argue that there is substantial evidence to support
their decision.
STANDARD OF REVIEW
Alliance contends that the Trustees failed to conduct an adequate environmental analysis
which amounts to a failure to proceed in a manner required by law. According to
Alliance, this failure to adhere to CEQA's procedural and substantive requirements
constitutes a prejudicial abuse of discretion. See Citizens to Pres. the Ojai v. Cnty. of
Ventura (1985) 176 Cal.App.3d 421, 428. In Citizens, the EIR's discussion of
cumulative air quality impacts did not meet the requirements of CEQA as it failed to
explain in even minimum detail the basis for the omission of certain data and provided no
reasoned analysis clarifying why it relied solely on an earlier analysis. Id. at 430. Unlike
the facts in Citizen, the issue in this case is not whether the Trustees evaluated
environmentally superior alternatives; rather the issue is whether they properly rejected
the Alternative Site as infeasible.
"In evaluating an EIR for CEQA compliance, then, a reviewing court must adjust its
scrutiny to the nature of the alleged defect, depending on whether the claim is
predominantly one of improper procedure or a dispute over the facts. For example, where
an agency failed to require an applicant to provide certain information mandated by
CEQA and to include that information in its environmental analysis, we held the agency
`failed to proceed in the manner prescribed by CEQA.' Sierra Club v. State Bd. of
Forestry (1994) 7 CalAth 1215, 1236; see also Santiago County Water Dist. v. County of
Orange, supra, 118 Ca1.App.3d at p. 829. [EIR legally inadequate because of lack of
water supply and facilities analysis]. In contrast, in a factual dispute over `whether
adverse effects have been mitigated or could be better mitigated' (Laurel Heights 1,
supra, 47 Cal.3d at p. 393), the agency's conclusion would be reviewed only for
substantial evidence." Vineyard Area Citizens v. City of Rancho Cordova (2007) 40
Cal.4th 412, 435.
Exhibit "A" Page 2 of 9
2
Because there is a factual dispute as to whether the Alternate Site is a feasible location,
the appropriate standard of review is substantial evidence. See Oakland Heritage
Alliance v. City of Oakland (2011) 195 Cal.AppAth 884, 898—Substantial evidence
applies to challenges to an EIR's analysis of a topic, the methodology used for studying
an impact and the reliability or accuracy of the data because those challenges involve
factual questions.
In terms of applying the substantial evidence standard to a CEQA challenge, the appellate
court in San Diego Citizenry Grp. v. Cnty. of San Diego (2013) 219 Cal.AppAth 1,
provides an instructive summary:
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.' Mira Mar Mobile Community v. City of Oceanside (2004)
119 Cal.App.4th 477, 486. In reviewing an agency's decision for
substantial evidence, courts `must indulge all reasonable inferences from
the evidence that would support the agency's determinations and resolve
all conflicts in the evidence in favor of the agency's decision.' California
Native Plant Society v. City of Santa Cruz (2009) 177 Cal.AppAth 957,
985. This standard of review flows from the fact that "the agency has the
discretion to resolve factual issues and to make policy decisions." Save
Our Peninsula Committee v. Monterey County Bd. of Supervisors (200 1)
87 Cal.AppAth 99, 120; San Diego Citizenry Grp. v. Cnty. of San Diego
(2013) 219 Cal.AppAth 1, 16-17.
REJECTION OF ALTERNATIVE SITE
Under the substantial evidence standard, the Court presumes the governmental agency's
decisions are correct, thus Alliance has the burden of proving the contrary. San Diego
Citizenry Grp. v. Cnty. of San Diego, supra 219 Cal.AppAth 1, 11. As indicated above,
Alliance contends that the Trustees' rejection of the Alternative Site based on the
additional economic costs of $25,000,000 and the failure to achieve the objective of co -
location of freshman housing is not supported by substantial evidence.
Co -locating Freshman Housing
Alliance contends there is no evidence to support the Trustees' assertion that co -locating
freshman housing was a recognized objective for evaluating the feasibility of the
Alternative Site. According to Alliance, this objective could not be a core objective
because it was not identified or considered until it was asserted into the Errata in the
FEIR. As an example, Alliance points to the March 27, 2014 Submittal Package
provided to the Housing Proposal Review Committee which lists the Project's objectives,
Exhibit "A" Page 3 of 9
but does not include co -locating freshman housing. (AR 38:11010) Alliance also
highlights that the survey of students concluded the primary factors influencing their
housing decisions were rent and proximity to classes. (AR 38:10972) Alliance also
emphasizes that the Master Plan disperses freshman housing at various locations
throughout the campus. (AR 12:3426)
Alliance argues that these points (and others) establish that the co -locating objective was
pre -textual and result -driven to justify the selection of the Proposed Site. Alliance asserts
that by introducing co -locating freshman housing as a core objective, the Trustees
eliminated any other alternative sites on campus for new freshman housing. Alliance
cites to the California Supreme Court's statement in In re Bay -Delta Programmatic
Envd. Impact Report Coordinated Proceedings, supra 43 CalAth 1143, 1166, that a lead
agency may not give a project's purpose an artificially narrow definition to eliminate
alternatives. However, Alliance does not cite to any authority in which an alternative
analysis under CEQA was deemed deficient because the objective was pre -textual.
The Trustees argue that the record reveals that they completed a thorough assessment of
the Alternative Site and there is substantial evidence to support the finding that the site is
infeasible. The Trustees emphasize their balancing of project objectives that are
sufficiently broad to explain key concepts of the Project versus too narrowly defining the
objectives so as to constrain the selection and analysis of any alternative sites.
The Trustees cite to evidence which shows that the location of new housing in relation to
existing dining facilities, student activity centers, and existing housing has long been an
objective. For example, in the DEIR it was explained that the Alternative Site was
rejected because of its distance from "existing freshman housing, impacting program
coordination" and "existing communal dining facilities". (AR 10:2725, 10:2730) Also,
the DEIR states that the Proposed Site was selected because of its proximity to existing
freshman housing. (AR 10:2730) Thus, it does not appear that co -locating freshman
housing was a last minute addition to the FEIR. There is also evidence that at community
presentations alternative sites were criticized because of a segregation of freshmen, and
the Proposed Site was supported because it enhanced the student experience by freshmen
living in close proximity to each other. (AR 37:10667, 39:11313, 39:11387)
Contrary to Alliance's assertion, there was no error or impropriety by inclusion of the co -
location objective in the FEIR. A final EIR may illuminate, modify, or correct issues in
the draft EIR. Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213
Cal.AppAth 1277, 1300. The RDEIR referenced certain housing objectives, including
but not limited to enriching and developing the residential community on campus. (AR
6:1560) In response to certain comments, the FEIR through the Errata provided greater
specificity in the objectives, including the inclusion of co -locating freshman housing in a
location with easy access to campus amenities including dining and the recreation center.
(AR 2:341; 2:445) In conclusion, the Trustees determined that the Alternate Site would
not achieve the objective of co -locating freshman housing. (AR 2:471-472)
Exhibit "A" Page 4 of 9
4
In reply, Alliance asserts that the core objective of the Project is to provide 1,475 new
beds on campus and that the Alternate Site meets that objective. Alliance then refers to
the Master Plan and argues that the Alternate Site satisfies the "proximity principle" of
connecting related activities to facilitate student learning and is consistent with the
Master Plan's concept of dispersing new housing throughout the campus. Alliance
argues that creating 1,475 new freshman beds in one location "co -locates" 1,475
freshmen. Alliance also contends that the Alternate Site allows for greater connection to
campus resources. Alliance tries to make the case that there is substantial evidence that
the Alternate Site meets or even enhances the objectives for freshman housing.
But the standard of review is not whether there is evidence to support the petitioner's
position on a CEQA issue; rather, the standard is whether there is substantial evidence to
support the agency's decision. San Diego Citizenry Grp. v. Cnty. of San Diego (2013)
219 Cal.AppAth 1, 16-17; Laurel Heights v. Regents of Univ. of Cal. (1988) 47 Cal.3d
376, 407. In reviewing for substantial evidence, the courts: "must indulge all reasonable
inferences from the evidence that would support the agency's determinations and resolve
all conflicts in the evidence in favor of the agency's decision." California Native Plant
Society v. City of Santa Cruz (2009) 177 Cal.AppAth 957, 985. The reviewing court
cannot set aside an agency's approval of an EIR on the ground that an opposite
conclusion would have been equally or more reasonable. Citizens of Goleta Valley v.
Board of Supervisors (1990) 52 Cal.3d 553, 564; In re Bay -Delta Programmatic Envtl.
Impact Report Coordinated Proceedings, supra, 43 CalAth 1143, 1161-1162.
In order to satisfy the alternative analysis requirement under CEQA, an EIR "must
consider a reasonable range of alternatives to the project or location of the project which:
(1) offer substantial environmental advantages over the project proposal (Pub. Resources
Code, §21002); and (2) may be `feasibly accomplished in a successful manner'
considering the economic, environmental, social and technological factors involved."
Preservation Action Council v. City of San Jose (2006) 141 Cal.AppAth 1336, 1350,
quoting Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 566.
The Preservation Action court provides an instructive analysis for the reviewing court:
First, in order for the FEIR to be certified as in compliance with CEQA,
the FEIR was required to identify a reasonable range of environmentally
superior alternatives and to set forth facts and `meaningful analysis' of
these alternatives rather than `just the agency's bare conclusions or
opinions.' (Laurel Heights Improvement Assn. v. Regents of University of
California, supra, 47 Cal.3d 376, 404-405; Citizens of Goleta Valley v.
Board of Supervisors, supra, 52 Cal.3d at p. 569; Cal.Code Regs., tit. 14
(Guidelines), § 15126.6, subd. (a).) In addition, the EIR should have
identified any alternatives rejected as infeasible during the scoping process
along with the reasons why those alternatives were found infeasible.
(Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p.
Exhibit "A" Page 5 of 9
569.) The EIR was required to contain `detail sufficient to enable those
who did not participate in its preparation to understand and to consider
meaningfully' the alternatives to the proposed project. (Laurel Heights, at
pp. 404-405, 253 Cal.Rptr. 426, 764 P.2d 278.)
Second, in order to approve a project that would have a significant
environmental impact, the City was required to make findings identifying
(1) the `[s]pecific ... considerations' that `make infeasible' the
environmentally superior alternatives and (2) the `specific ... benefits of
the project [which] outweigh' the environmental harm. Pub. Resources
Code, §§21002.1, subd. (b), 21081; Guidelines, §15092, subd. (b); Pres.
Action Council v. City of San Jose, supra 141. Cal.AppAth 1336, 1353.
Here, the FEIR and RDEIR identified a reasonable range of environmentally superior
alternatives and identified the alternatives that were rejected. (AR 2:470; 6:1731-1735)
The Trustees made findings identifying the specific considerations that made each
environmentally superior alternative infeasible. (AR 2:470-473; 6:1735-1754) The FEIR
and RDEIR contain sufficient detail to enable others to understand and to consider
meaningfully the alternatives to the proposed project.
Additional Economic Costs
In addition to the co -locating objective, the Trustees determined that the Alternative Site
was infeasible because it would result in $25,000,000 of additional construction costs
related to an increase in the heights of the buildings, the construction of a new dining
facility, and the construction of a bridge. (AR 1:45) The calculations of the additional
$25,000,000 in costs are set forth in an itemized breakdown. (AR 37:10620) In response
to the City of San Luis Obispo's concerns, the Trustees provided an explanation of the
breakdown of the $25,000,000 in extra costs. (AR 2:390-391)
Alliance contends that the estimate of $25,000,000 is not adequately explained in the
FEIR. Alliance is critical of the FEIR because it does not provide sufficient explanation
and supporting facts to support the conclusion that placing the Project on the Alternate
Site will cost an additional $25,000,000. Alliance also criticizes the assumption that the
Alternate Site requires the construction of a new dining facility.
Contrary to Alliance's assertion, CEQA does not require that the EIR itself contain
information regarding the economic feasibility of alternatives. San Franciscans
Upholding the Downtown Plan v. City & Cnty. of San Francisco (2002) 102 Cal.App.4th
656, 691—"As such, it [EIR] is an informational document, not one that must include
ultimate determinations of economic feasibility."
Exhibit "A" Page 6 of 9
6
Alliance also asserts that the FEIR failed to adequately analyze the costs of developing
the Alternative Site compared to the costs of developing the Project at the Proposed Site.
Alliance asserts that it would be more cost effective to use the Alternate Site because it
costs less to extend utilities to the Alternative Site and claims that there are unrecognized
construction costs associated with grading, fill, and groundwater conditions at the
Proposed Site. Thus, Alliance concludes that the FEIR and the Trustees failed to fairly
compare construction costs. However, the Trustees counter that it was appropriate to rely
on the Proposed Site as a baseline and then determine the marginal increase in costs
associated with the Alternate Site. SPRAWLDEF v. San Francisco Bay Conservation &
Dev. Comm'n (2014) 226 Cal.App.4th 905, 918.
"The `feasibility of... alternatives must be evaluated within the context of
the proposed project. "The fact that an alternative may be more expensive
or less profitable is not sufficient to show that the alternative is financially
infeasible. What is required is evidence that the additional costs or lost
profitability are sufficiently severe as to render it impractical to proceed
with the project." ' [Citations.] Thus, when the cost of an alternative
exceeds the cost of the proposed project, `it is the magnitude of the
difference that will determine the feasibility of this alternative.' " (Center
for Biological Diversity v. County of San Bernardino (2010) 185
Cal.AppAth 866, 883.) Ultimately, "the question is ... whether the
marginal costs of the alternative as compared to the cost of the proposed
project are so great that a reasonably prudent [person] would not proceed
with the [altered project]." Uphold Our Heritage v. Town of Woodside
(2007) 147 Cal.AppAth 587, 600; SPRAWLDEF v. San Francisco Bay
Conservation & Dev. Comm'n, supra, 226 Cal.AppAth 905, 918.
There is substantial evidence to support the Trustees' determination that the Alternate
Site is not economically feasible because the development costs associated with the
Alternate Site greatly exceed (by a factor of at least 12%) the costs for constructing the
Project at the Proposed Site. This is significant given the budgetary constraints imposed
upon the Trustees for housing projects. (AR 37:10538-48; 38:11030-61) Throughout the
environmental review process, Cal Poly was aware of the neighbors' concerns relative to
the location of the Project and evaluated alternative locations. (AR 2:406-409, 37:10626-
10653, 10663-10676, 10683-10684) In evaluating alternative sites, including the
Alternate Site, the DEIR, RDEIR and FEIR contain sufficient analysis and information to
allow the Trustees to make an informed decision and provide sufficient information for
the neighbors to understand, evaluate, and respond to the assertion that the Alternate Site
is not feasible. Laurel Heights v. Regents of Univ. of Cal., supra, 47 Cal.3d 376, 404.
Exhibit "A" Page 7 of 9
7
MASTER PLAN INCONSISTENCY
According to Alliance, the Master Plan requires that all new buildings comply with the
Master Plan as adopted in 2001. (AR 18:4963) Alliance then points out that before the
Master Plan was amended by the Trustees, the Project was inconsistent with the
development maps and planning principles in the Master Plan. The Trustees did amend
the Master Plan to eliminate sites that had once been identified as locations for freshman
housing. However, Alliance asserts that the Trustees failed to amend the Master Plan's
guidelines and planning principles. More specifically, Alliance contends that the Project
violates the "compatibility" principal that student housing must be buffered from the
residential neighborhood.
Alliance then reviews other principles in the Master Plan such as a new limited student
housing facility next to Yosemite dorm and the proposal for recreational athletic fields at
the Proposed Site which would maintain a buffer between Cal Poly and the
neighborhood. Alliance contends that the Project's proposed buffer of a landscaped 35 -
foot setback does not maintain the Master Plan's requirement that there be an adequate
buffer. According to Alliance, the FEIR did not analyze the Project's consistency with
the compatibility and buffer guidelines in the Master Plan.
In opposition, the Trustees argue that there is substantial evidence to support their
consistency decision and they had the discretion to balance the Master Plan's buffer
policy with other policies that encourage co -locating student housing. San Francisco
Tomorrow v. City & Cnry. of San Francisco (2014) 228 Cal.AppAth 498, 514-515.
As pointed out by the Trustees, there is substantial evidence that they considered the
applicable buffer policies in the Master Plan. Only one side of the Project borders the
neighborhood and that residential unit has been designated as a "quiet dorm," has a
reduced height, and is set back 35 feet from Slack Street. (AR 2:541 and 5:1257-62) The
project is designed to orient internally to the campus and away from the neighborhood.
(Id.) Likewise, the RDEIR specifically identifies the compatibility principles of the
Master Plan where applied as relates to impacts on the neighborhood. (AR 6:1594-95)
More importantly, a decision about a project's consistency and compatibility with a
general plan is discretionary and allows a governmental agency such as the Trustees to
"weigh and balance the plan's policies when applying them, and it has broad discretion to
construe its policies in light of the plan's purposes. (Citations)" San Francisco Tomorrow
v. City & Cnry. of San Francisco, supra 228 Cal.AppAth 498, 514-515.
This Court must defer to the Trustees' determination of consistency as there is substantial
evidence to support the decision and which confirms the Trustees did not act arbitrarily or
capriciously. (Id.) The Court cannot substitute its own preferences and decision where,
as here, the Trustee made reasonable decisions after considering and applying the Master
Plan's compatibility and buffer guidelines when it balanced those guidelines with other
principles in the Master Plan. It is also worthy of mention that use of the Alternate Site
would also be inconsistent with the Master Plan, requiring an amendment. (AR 6:1740)
Exhibit "A" Page 8 of 9
INFEASIBILITY OF AIR QUALITY MITIGATION
Lastly, Alliance challenges the determination in the FEIR that mitigation of construction
related ROG+NOx emissions associated with the application of architectural coatings
was infeasible. (AR 6:1629-1630) Even with certain mitigation efforts, the architectural
coatings emissions exceed the daily thresholds. As such, further remediation was
considered which included limiting the application period to less than three hours a day
which would extend this phase of construction from 20 days to 40 days. (M) The FEIR
concluded that limiting the application period to less than three hours a day is not feasible
because it is unduly inefficient and provides insufficient time to mobilize crews and
achieve effective applications of the coatings. (M) In addition, any improvements in
VOC levels would be offset by increased commuting and equipment emissions. (M)
Alliance argues that this explanation is not supported by substantial evidence.
But the FEIR contains substantial evidence to support its conclusion that further
mitigation by limiting application time periods is infeasible. The FEIR provides a
quantitative analysis which supports the conclusion. (AR 6:1628-33) It is not the
function of this Court to weight the conflicting evidence or determine who has the better
argument when the dispute is whether adverse effects could be better mitigated. (Laurel
Heights v. Regents of Univ. of Cal., supra, 47 Cal.3d 376, 393.) The purpose of CEQA is
to compel governmental agencies to make decisions after environmental consequences
are considered. The FEIR achieves that goal as to the feasibility of the air quality
mitigation measures.
CONCLUSION
As stated by the Trustees: "CEQA does not allow Petitioner to impose its preferred
alternative, or to impose its policy choices over that of CSU." The law requires this
Court to defer to the Trustees' policy decisions and its review is limited to whether the
administrative record contains sufficient evidence to support the Trustees' actions. Here,
the FEIR contains sufficient evidence to support the Trustees' decision that the Alternate
Site is infeasible, that the Project is not inconsistent with the Master Plan, and that further
mitigation of air quality mitigation measures are infeasible.
The writ of mandate is therefore denied.
Exhibit "A" Page 9 of 9
9
STATE OF CALIFORNIA, COUNTY OF SAN LUIS OBISPO
CERTIFICATE OF MAILING
Alliance of SLO Neighborhoods vs. The Board of Trustees of the 14CV-0334
California State University
Babak Naficy
Law Offices Of Babak Naficy
1504 Marsh Street
San Luis Obispo CA 934010000
Elizabeth Lynch Bridges
575 Market St Ste 2700
San Francisco CA 94105
I, Erin Brown, Deputy Clerk of the Superior Court of the State of California, County of San Luis
Obispo, do hereby certify that I am over the age of 18 and not a party to this action. Under
penalty of perjury, I hereby certify that on 05/07/2015 I deposited in the United States mail at
San Luis Obispo, California, first class postage prepaid, in a sealed envelope, a copy of the
attached Ruling and Notice of Ruling on Peremptory Writ of Mandate. The foregoing
document was addressed to each of the above parties.
OR
If counsel has a pickup box in the Courthouse a copy was placed in said pickup box this date.
Dated: 5/7/2015 Susan Matherly, Clerk of the Court
By: Deputy Clerk
Erin Bro