COUNTY OF SAN DIEGO v. GROSSMONT-CUYAMACA COMMUNITY COLLEGE DISTRICT

Filed 7/7/06

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Reversed and remanded with directions.

John J. Sansone, County Counsel, and C. Ellen Pilsecker, Deputy County Counsel, for Plaintiff and Appellant.

Stephenson, Worley, Garratt, Schwartz, Garfield & Prairie and Kevin P. Sullivan for Defendant and Respondent.

Defendant Grossmont-Cuyamaca Community College District (the District) prepared a master plan approving 20 construction and remodel projects (hereafter the project) at its Cuyamaca College campus in the unincorporated community of Rancho San Diego that will accommodate a substantial growth in student population and result in significant impacts to off-campus traffic. Acting pursuant to the California Environmental Quality Act (CEQA)^[1] and the CEQA Guidelines,^[2] the District prepared and certified the adequacy of the final environmental impact report (final EIR) for the project, adopted a statement of overriding considerations with CEQA findings, and approved the master plan, asserting that it is legally and economically infeasible for the District to pay for any off-campus road improvements to mitigate the off-campus traffic impacts and that the unavoidable adverse environmental effects of the project are acceptable because the project's benefits outweigh those effects.

The County of San Diego (the County) filed a petition for writ of mandate to challenge the District's decisions to certify the final EIR, adopt the CEQA findings and statement of overriding considerations and approve the master plan, claiming that the District is subject to the requirements of CEQA, the District's findings are not supported by substantial evidence, and the District must adopt feasible measures to mitigate the significant adverse impacts of the project on off-campus traffic. The court denied the petition and entered judgment in favor of the District.

The County appeals, contending (1) the District is subject to the mitigation requirements of CEQA; (2) the District's findings of infeasibility are not supported by substantial evidence or the law, and thus the District failed to comply with its CEQA obligations; (3) the District's claim of legal infeasibility is erroneous; (4) the District's failure to adopt mitigation measures is not excused by its adoption of the statement of overriding considerations because it is not supported by substantial evidence; and (5) the District's argument that its funding of off-campus traffic mitigation measures would be an unconstitutional gift to the County of public funds is unavailing because CEQA does not require a gift of public funds.

We must determine whether the District prejudicially abused its discretion by certifying the final EIR, adopting the CEQA findings and statement of overriding considerations, and approving the master plan without adopting feasible measures to mitigate the project's adverse significant off-campus traffic impacts that are identified in the final EIR. To make this determination, we must decide whether the District is authorized by the Legislature to spend public funds to improve off-campus roads and intersections, some of which are owned and maintained by the County, and therefore whether it is legally feasible within the meaning of CEQA for the District to fund its proportional share of the needed off-campus road improvements as a means of mitigating the off-campus traffic impacts identified in the final EIR. We must also decide whether substantial evidence supports the District's claim of economic infeasibility.

We conclude the District is authorized under the provisions of the Community College Construction Act of 1980 (Ed. Code, § 81800 et seq.), Education Code section 81949, and pertinent regulations (specifically, Cal. Code Regs., tit. 5, §§ 57100 & 57121, subd. (f)) to spend public funds to mitigate the project's significant adverse off-campus traffic impacts, and thus the District's claim of legal infeasibility fails. We also conclude the District's claim of economic infeasibility is not supported by substantial evidence. Accordingly, we hold that the District prejudicially abused its discretion, and the judgment must be reversed.

FACTUAL BACKGROUND

A. Cuyamaca College Master Plan

In April 2004, in an effort to expand and improve its Cuyamaca College campus, the District prepared a Cuyamaca College Master Plan (the master plan) that identified 20 construction and remodel projects that were needed to accommodate anticipated growth in the student population at the campus. The proposed projects include the construction and remodeling of academic and administrative buildings, expansion of parking lots and physical education facilities, and renovations of existing buildings for code compliance and technology upgrades. The proposed improvements will be built through about 2015 and will allow the campus to accommodate the anticipated growth from the current enrollment of about 8,000 students to the projected enrollment of 15,000 students.

A portion of the funds needed to implement the master plan will come from bond revenues authorized by Proposition R, which the District's voters approved in November 2002. County counsel's analysis of Proposition R, contained in the voter information pamphlet, stated that "[t]he proceeds of [the] bonds of the [District] would be used to repair leaking roofs, worn wiring and plumbing, and aging restrooms; renovate aging and deteriorating classrooms and labs; and repair, acquire, construct and equip college buildings, sites, and science and computer labs at Grossmont College and Cuyamaca College in order to prepare students for jobs and four-year colleges, to train medical workers, nurses and safety officers, and to relieve overcrowding." No Proposition R funds were authorized to be spent on offsite traffic improvements.

B. Draft Environmental Impact Report

As the lead agency for the project under CEQA, the District prepared a draft environmental impact report (the draft EIR) that examined the significant environmental impacts that will result from implementation of the master plan. Included in the draft EIR was a discussion of the traffic impacts. Specifically, the draft EIR examined a number of off-campus intersections and road segments that would be affected by the master plan and stated that the plan would result in significant impacts to transportation network operations absent mitigation measures.^[3] The draft EIR stated that certain "roadway improvements are planned as part of the County Circulation Element," and labeled those improvements as mitigation measures. The draft EIR also stated that several recommended mitigation measures addressing project impacts to intersection operations "will be incorporated into the County improvements planned as part of the Circulation Element."

C. County's Objection to the Draft EIR

In early April 2004 the County objected to the draft EIR traffic study and its identification of the County as the entity responsible for implementing mitigation measures for the project. The County detailed its concern that the draft EIR failed to provide adequate mitigation measures for potentially significant traffic impacts. The District then prepared the final EIR.

D. Final EIR, CEQA Findings, and Statement of Overriding Considerations

The District's governing board (hereafter the District's board) considered certification of the final EIR and adoption of a statement of overriding considerations for the project. Following a public meeting, the District's board certified the adequacy of the final EIR under CEQA, adopted CEQA findings and the statement of overriding considerations, and approved the master plan.

The District itself made no commitment to implement any traffic mitigation measures. The final EIR stated, however, that "to the extent permitted by law, the [District] may participate with the [County]" (italics added) to mitigate the project's off-campus traffic impacts.

In its CEQA findings, the District made a finding (hereafter sometimes referred to as the infeasibility finding) that certain economic and legal considerations made infeasible the traffic mitigation measures identified in the final EIR. In support of its infeasibility finding, the District stated that the County and Caltrans, rather than the District, have jurisdiction over the roadway improvement projects, and the District lacks statutory authorization to even fund a proportional share of any off-site traffic improvements to any roadway segments.

In its statement of overriding considerations, the District asserted that its board, "after balancing the specific economic, legal, social, technological, and other benefits of the project against its unavoidable environmental impacts, determines that the unavoidable adverse environmental effects may be considered 'acceptable' due to the following specific considerations, which collectively are sufficient to outweigh the unavoidable, adverse environmental impacts of the [project]." The District then listed the following eight "overriding considerations": (1) implementation of the master plan, (2) increased employment opportunities, (3) increased sales tax revenue, (4) establishment of a framework for the expenditure of Proposition R funds, (5) revitalization of Cuyamaca College campus facilities, (6) implementation of state building code compliance measures on existing facilities, (7) increased economic benefits to the local community, and (8) inability of the District to fund off-campus traffic improvements.

PROCEDURAL BACKGROUND

A. County's Writ Petition

The County challenged the District's refusal to mitigate the off-campus traffic impacts of the project by filing a petition for a writ of mandate directing the District to (1) set aside its certification of the final EIR, adoption of CEQA findings and the statement of overriding considerations, and its approval of the master plan; and (2) prepare a new environmental impact report. In support of its petition, the County asserted that the traffic mitigation measures set forth in the final EIR were inadequate because substantial evidence did not support the finding that the County should be responsible for the needed road improvements, the final EIR did not demonstrate that either the District or the County made a binding commitment to implement the mitigation measures, and the failure to adopt mitigation measures was not excused by the adoption of the statement of overriding considerations.

The County also asserted that the District's finding that it was infeasible to make off-campus improvements to mitigate the significant impacts on area traffic was erroneous because Government Code section 54999.1, subdivision (d) (discussed, post) did not apply, the District's reliance on San Marcos Water District v. San Marcos Unified School District (1986) 42 Cal.3d 154 (San Marcos) was unavailing because that case did not involve CEQA, the District's CEQA mitigation obligation is not a special assessment, and the Legislature has authorized the imposition of mitigation responsibilities on the District. The County also maintained that although the state Constitution prohibits gifts of public funds, CEQA does not require such a gift.

B. District's Opposition

In its written opposition to the petition, the District argued it was "infeasible for the District to mitigate the offsite traffic impacts resulting from its project" because "no authority allows [it] to utilize legislatively-allocated educational monies to enhance the County's local transportation infrastructure," and the County "cannot use CEQA's mitigation requirements to overcome well-settled precedent that prohibits one public agency from charging another agency to pay for local infrastructure improvements absent express authorization from the Legislature." Citing San Marcos, supra, 42 Cal.3d 154, Government Code section 54999.1, subdivision (d), and Education Code section 81606, the District also claimed that traffic impact fees demanded by the County are special assessments that the Legislature has not authorized the County to impose on the District.

C. Judgment

Following oral argument on the petition, the court took the matter under submission. In April 2005 the court issued a minute order denying the County's petition. The court found that substantial evidence supported the final EIR, the statement of overriding considerations, the master plan, and the District's infeasibility finding. Based on its independent review, the court also found that "the obligation to mitigate environmental impacts of the project does not include payment of traffic impact mitigation expenses or payment of special assessments by the District. Such an obligation does not exist without express legislative authorization." The County's appeal from the judgment followed.

STANDARD OF REVIEW

In Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 486 (Mira Mar Mobile Community), this court explained that "[i]n a mandate proceeding to review an agency's decision for compliance with CEQA, we review the administrative record de novo [citation], focusing on the adequacy and completeness of the EIR and whether it reflects a good faith effort at full disclosure. [Citation.] Our role is to determine whether the challenged EIR is sufficient as an information document, not whether its ultimate conclusions are correct. [Citation.]" An EIR is presumed adequate. (§ 21167.3, subd. (a).)

We review an agency's action under CEQA for a prejudicial abuse of discretion. (§ 21168.5.) "Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (Ibid.; Mira Mar Mobile Community, supra, 119 Cal.App.4th at p. 486.)

In defining the term "substantial evidence," the CEQA Guidelines state: " 'Substantial evidence' . . . means 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. Whether a fair argument can be made . . . is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion[,] narrative [or] evidence which is clearly erroneous or inaccurate . . . does not constitute substantial evidence." (CEQA Guidelines, § 15384, subd. (a).) "In applying the substantial evidence standard, we resolve all reasonable doubts in favor of the administrative finding and decision. [Citation.]" (Mira Mar Mobile Community, supra, 119 Cal.App.4th at p. 486.)

Although the District's factual determinations are subject to the foregoing deferential rules of review, "questions of interpretation or application of the requirements of CEQA are matters of law. [Citations.] While we may not substitute our judgment for that of the decision makers, we must ensure strict compliance with the procedures and mandates of the statute. [Citation.]" (Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, 118.)

DISCUSSION^[4]

The County maintains that the District is subject to the mitigation requirements of CEQA. It also asserts that the District's infeasibility finding is not supported by substantial evidence, and the District's claim of legal infeasibility is erroneous.

In response, the District does not dispute that it is subject to the provisions and requirements of CEQA. The District contends, however, that substantial evidence and applicable legal authorities support its findings that mitigation of the adverse traffic impacts identified in the final EIR is not "feasible" within the meaning of CEQA because (1) the County has exclusive jurisdiction over the affected roads, (2) the District cannot assure the needed road improvements will actually be implemented, (3) construction of "many of the required traffic mitigation measures [is] constrained by limited right-of-way" and "would require eminent domain and displacement of residents," and (4) the District cannot "lawfully pay for the offsite traffic improvements." The District thus posits that mitigation of the adverse traffic impacts is not legally or economically feasible. The District also contends that substantial evidence supports its finding that the benefits of the project outweigh its unavoidable adverse environmental effects, and thus its statement of overriding considerations meets the requirements of CEQA.

We reject the District's contentions and conclude the County has met its burden of showing the District's infeasibility finding is not supported by substantial evidence or applicable law.

A. The District's Infeasibility Finding

In its infeasibility finding, which it adopted under section 21081, subdivision (a)(3) and CEQA Guidelines section 15091, subdivision (a)(3) (discussed, post), the District stated that "there are no other feasible mitigation measures that would mitigate the near- and long-term traffic impacts of the [project] to below a level of significance" and "specific economic, legal, social, technological or other considerations . . . make infeasible the mitigation measures identified in the final EIR. The [District's board] has determined that this impact is acceptable because of specific overriding considerations and benefits of the project which outweigh the significant effects on the environment as outlined in the attached Statement of Overriding Considerations." (Italics added.)

In support of the infeasibility finding, the District stated in part that the mitigation measures identified in the final EIR were infeasible because "the [County] and Caltrans, not the District, have jurisdiction" over the roadway improvement projects, and "the District is without statutory authorization to even fund a proportional share of any offsite traffic improvements to [any] roadway segments . . . and to do so would constitute an impermissible gift of public funds." The District also stated that "specific economic considerations make further mitigation measures infeasible," because "insufficient right-of-way exists to further widen the affected roadway segments and/or intersections" and unspecified "costs for right-of-way acquisition . . . would likely be significant."

B. Applicable Provisions of CEQA and the CEQA Guidelines

1. CEQA's "substantive mandate"

CEQA codifies the important statewide policy of "ensur[ing] that the long-term protection of the environment . . . shall be the guiding criterion in public decisions." (§ 21001, subd. (d).)^[5] "The foremost principle under CEQA is that the Legislature intended the act 'to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.' " (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390, citing Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.)

CEQA contains a "substantive mandate" requiring public agencies to refrain from approving projects with significant environmental effects if "there are feasible alternatives or mitigation measures" that can substantially lessen or avoid those effects. (Mountain Lion Foundation v. Fish and Game Commission (1997) 16 Cal.4th 105, 134 (Mountain Lion Foundation), italics added; see also § 21002 ["The Legislature finds and declares that it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects . . ."].) The CEQA Guidelines define the term "feasible" as "capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." (CEQA Guidelines, § 15364, italics added.)

2. Findings under section 21081 and CEQA Guidelines section 15091

"CEQA's substantive mandate that public agencies refrain from approving projects for which there are feasible alternatives or mitigation measures is effectuated in section 21081. [Citation.]" (Mountain Lion Foundation, supra, 16 Cal.4th at p. 134.) Section 21081 "effectuates the 'substantive mandate' of CEQA by requiring an agency to make certain findings before approving any project with significant effects." (Remy et al., Guide to Cal. Environmental Quality Act (10th ed. 1999) pp. 286-287, fn. omitted.)

Section 21081 provides in part that "no public agency shall approve or carry out a project for which an environmental impact report has been certified which identifies one or more significant effects on the environment that would occur if the project is approved or carried out" unless (among other things) the agency makes one or more of three findings specified in subdivision (a)(1)-(3) of that section "with respect to each significant effect."^[6] (See also CEQA Guidelines, § 15091, subd. (a) (hereafter CEQA Guidelines section 15091(a)).)^[7]

Citing section 21081, subdivision (a) (hereafter section 21081(a)) and CEQA Guidelines section 15091(a), one leading commentator has explained that "[f]or each significant effect identified in the EIR, the approving agency must make one or more of the following findings: (1) that changes or alterations have been required in, or incorporated into, the project that avoid or substantially lessen the effect; (2) that the agency making the findings lacks jurisdiction to make the change, but that another agency does have such authority, and either has made, or can and should make, the change; and/or (3) that specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the final EIR." (Remy et al., Guide to Cal. Environmental Quality Act, supra, p. 323, italics added.)

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^[1] CEQA, which was enacted in 1970, is codified in Public Resources Code section § 21000 et seq. All further statutory references are to the Public Resources Code unless otherwise specified.

^[2] The CEQA Guidelines are found at California Code of Regulations, title 14, section 15000 et seq. All further references to the CEQA Guidelines refer to title 14 of the California Code of Regulations.

^[3] Because the issues presented in this appeal do not involve the specific nature or extent of either the significant adverse off-campus traffic impacts or the road improvements that are needed to mitigate those impacts, we need not, and shall not, discuss them in detail.

^[4] The District's unopposed request for judicial notice of the Notice of Determination for the Cuyamaca College Master Plan of Expansion Final Environmental Impact Report filed by the District on April 21, 2004, an authenticated copy of which is attached to the written request, is granted. (Evid. Code, §§ 452, subd. (h), 453.)

^{[5] Section 21001, subdivision (d) provides: "The Legislature . . . finds and declares that it is the policy of the state to: [¶] . . . [¶] (d) Ensure that the long-term protection of the environment, consistent with the provision of a decent home and suitable living environment for every Californian, shall be the guiding criterion in public decisions."}

^{[6] Section 21081 provides in full: "Pursuant to the policy stated in Sections 21002 and 21002.1, no public agency shall approve or carry out a project for which an environmental impact report has been certified which identifies one or more significant effects on the environment that would occur if the project is approved or carried out unless both of the following occur: [¶] (a) The public agency makes one or more of the following findings with respect to each significant effect: [¶] (1) Changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment. [¶] (2) Those changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency. [¶] (3) Specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in the environmental impact report. [¶] (b) With respect to significant effects which were subject to a finding under paragraph (3) of subdivision (a), the public agency finds that specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects on the environment."}

^{[7] CEQA Guidelines section 15091(a) provides: "(a) No public agency shall approve or carry out a project for which an EIR has been certified which identifies one or more significant environmental effects of the project unless the public agency makes one or more written findings for each of those significant effects, accompanied by a brief explanation of the rationale for each finding. The possible findings are: [¶] (1) Changes or alterations have been required in, or incorporated into, the project which avoid or substantially lessen the significant environmental effect as identified in the final EIR. [¶] (2) Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by such other agency. [¶] (3) Specific economic, legal, social, technological, or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or project alternatives identified in the final EIR."}