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

Story continue from Part I …….

An agency's finding of infeasibility under section 21081(a)(3) and CEQA Guidelines section 15091(a)(3) must be supported by substantial evidence in the administrative record. (§ 21081.5 ["In making the findings required by [section 21081(a)(3)], the public agency shall base its findings on substantial evidence in the record"]; CEQA Guidelines section 15091, subd. (b) ["The findings required by [CEQA Guidelines section 15091(a)] shall be supported by substantial evidence in the record"].)

3. Statement of overriding considerations

Also pertinent to this appeal is subdivision (b) of section 21081 (hereafter section 21081(b)),[1] which codifies an "override" requirement and comes into play where the lead agency has issued an infeasibility finding under section 21081(a)(3) and CEQA Guidelines section 15091(a)(3). (See Remy et al., Guide to Cal. Environmental Quality Act, supra, p. 341.) The corresponding implementing regulation is CEQA Guidelines section 15093,[2] under the provisions of which the District adopted its statement of overriding considerations in this case. Subdivision (b) of that CEQA Guideline (hereafter CEQA Guidelines section 15093(b)) provides in part that when the lead agency approves a project that "will result" in significant environmental effects that are identified in the final EIR but are not avoided or substantially lessened, the agency "shall" state in a written "statement of overriding considerations" the "specific reasons to support its action based on the final EIR and/or other information in the record."

In Sierra Club v. Contra Costa County (1992) 10 Cal.App.4th 1212, 1222, the Court of Appeal explained that "[a] statement of overriding considerations reflects the final stage in the decision[-]making process by the public body. A public agency can approve a project with significant environmental impacts only if it finds such effects can be mitigated or concludes that unavoidable impacts are acceptable because of overriding concerns. [Citations.] If approval of the project will result in significant environmental effects which 'are not at least substantially mitigated, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record.' [Citation.] These reasons constitute the statement of overriding considerations which is intended to demonstrate the balance struck by the body in weighing the 'benefits of a proposed project against its unavoidable environmental risks.' [Citations.] [¶] 'Whereas the [mitigation and feasibility] findings . . . typically focus on the feasibility of specific proposed alternatives and mitigation measures, the statement of overriding considerations focuses on the larger, more general reasons for approving the project, such as the need to create new jobs, provide housing, generate taxes, and the like.' [Citation.]"

The statement of overriding considerations, like an infeasibility finding under section 21081(a)(3) and CEQA Guidelines section 15091(a)(3) (discussed, ante), must be supported by substantial evidence in the administrative record. (CEQA Guidelines section 15093, subdivision (b).)[3]

C. Analysis

1. Claim of legal infeasibility

In support of its claim of legal infeasibility, the District first asserts that "[n]owhere in the comprehensive statutory scheme relating to community college districts is there any legislative authorization for the [District] to fund or build offsite street improvements." Asserting that its primary mission is to offer academic and vocational instruction, the District relies on Education Code section 14020.1 (discussed, post) for the proposition that statutory limits on its expenditures "do not permit use of the funds for offsite transportation infrastructure."

We recognize that "an agency's authority to impose mitigation measures must be based on legal authority other than CEQA." (1 Kotska & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 1st ed. 2005) § 17.18, pp. 820-821; see also § 21004,[4] CEQA Guidelines § 15040, subd. (b).[5]) The record shows, however, that the District accepts its responsibility under CEQA to mitigate significant impacts on air quality, aesthetics and visual quality, biological resources, cultural resources, hydrology and water quality, paleontology, and noise. The District does not explain how expenditure of funds to mitigate these project-related environmental impacts is permitted if, as it claims, the District is only authorized to spend funds on educational services.

The District's reliance on Education Code section 14020.1 is misplaced. That section provides in part that "[t]he amount transferred to Section B of the State School Fund pursuant to Section 8.5 of Article XVI of the State Constitution shall to the maximum extent feasible be expended or encumbered during the year received solely for the purposes of instructional improvement and accountability." By its own terms, Education Code section 14020.1 applies only to "[t]he amount transferred to Section B of the State School Fund pursuant to Section 8.5 of Article XVI of the State Constitution." However, article 16, section 8.5 of our state Constitution expressly requires the state controller during each fiscal year to allocate funds "[i]n addition to the amount required to be applied for the support of . . . community college districts pursuant to Section 8." (Italics added.) Thus, Education Code section 14020.1 restricts only a portion of the state funds provided to the District.[6]

The District's reliance on Education Code section 14020.1 as a broad legal limitation on expenditures is further undermined by Education Code section 81952, one of the statutes set forth in the Community College Revenue Bond Act of 1961 (Ed. Code, § 81900 et seq.), which provides that the District "may use for the payment of the costs of acquisition, construction, or completion of any project, any funds made available to the board by the State of California or any other funds provided by the board from any source, to be expended for the accomplishing of the purposes set forth in this chapter, together with the proceeds of revenue bonds issued and sold by the board." (Ed. Code, § 81952, italics added.)

The District is statutorily authorized under the Community College Construction Act of 1980 to utilize its funds to construct "adequate facilities" to meet the needs of a growing community college student population. Specifically, the Legislature expressly declared in section 81800, subdivision (b) of the Education Code that "it is in the interest of the state and of the people thereof for the state to provide assistance to community college districts for the construction of community college facilities. The community college system is of general concern and interest to all the people of the state, and the education of community college students is a joint obligation and function of both the state and community college districts. [¶] In enacting this chapter, the Legislature considers that there is a need to provide adequate community college facilities that will be required to accommodate community college students resulting from growth in population and from legislative policies expressed through implementation of the Master Plan for Higher Education." (Italics added.)

The foregoing declaration in Education Code section 81800 makes clear the Legislature contemplated that as California's community college student population grows, the state will be required to provide assistance to community college districts for the construction of "adequate community college facilities" that are needed to accommodate that growing population.

A growing community college is not an island unto itself, particularly in Rancho San Diego where Cuyamaca College is surrounded by residential and commercial development. In our view, expenditure of the District's funds on off-campus road and intersection improvements designed to accommodate the increased volume of student and faculty vehicular traffic to and from the Cuyamaca College campus that the project will generate, is implicitly authorized by section 81800 of the Community College Construction Act of 1980 (discussed, ante) and pertinent regulations. Specifically, the CEQA Guidelines are expressly adopted as part of the regulations promulgated to implement the Community College Construction Act of 1980.[7] California Code of Regulations, title 5, section 57121, subdivision (f), expressly provides that the chancellor of California Community Colleges "shall withhold authorization for the use of state funds for construction until requirements of [CEQA] have been met." (Italics added.)

To the extent the District is required under CEQA to help fund off-campus road and intersection improvements that are needed to mitigate adverse offsite traffic impacts that are created by the project, but fall within the responsibility of the County,[8] the CEQA compliance mandate set forth in California Code of Regulations, title 5, section 57121, subdivision (f) (discussed, ante) and Education Code section 81949 authorize the District to make those expenditures. Education Code section 81949 provides that "[t]he board may construct any project and acquire all property necessary therefor on such terms and conditions as it may deem advisable," and "[w]hen any part of the work is to be done or performed by any public body . . . jointly or in conjunction with the board, the portion of the cost thereof to be borne by the board may be turned over . . . to any other public body to be expended by it in the . . . completion of the project." (Italics added.)

The District relies on Education Code section 81606 for the proposition that "[o]nly direct frontage [traffic] improvements by a community college are permitted by statute." That section provides in part that "[t]he governing board of any community college District may grade, pave, construct sewers, or otherwise improve streets . . . in front of real property owned or controlled by it."[9] (Italics added.) The District's reliance on that section is misplaced.

" 'The fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citation.]' [Citation.] 'To determine the intent of legislation, we first consult the words themselves, giving them their usual and ordinary meaning. [Citations.]' [Citation.] Where the statutory wording is clear a court 'should not add to or alter [it] to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citation.]' [Citation.]" (Johnston v. Sonoma County Agricultural Preservation & Open Space Dist. (2002) 100 Cal.App.4th 973, 986.) "We must also construe statutes to reach a reasonable legislatively intended result [citation], and to harmonize competing statutes to effectuate the legislative policy." (Ibid.)

Here, the term "may" in Education Code section 81606 is permissive and authorizes a community college district to "grade, pave, construct sewers, or otherwise improve streets . . . ." However, that section makes no mention of CEQA and contains no prohibitory language indicating a legislative intent to abrogate a community college district's obligation under CEQA's "substantive mandate" (discussed, ante) to refrain from approving projects with significant environmental effects if there are feasible mitigation measures that can substantially lessen or avoid those effects. (See Mountain Lion Foundation, supra, 16 Cal.4th at p. 134.) Under this interpretation, the permissive language in Education Code section 81606 may be harmonized with applicable provisions of CEQA, the CEQA Guidelines, and thus the CEQA compliance mandate set forth in California Code of Regulations, title 5, section 57121, subdivision (f) (also discussed, ante) requiring the chancellor of the California Community Colleges to withhold authorization for use of state construction funds until the requirements of CEQA have been met.

Citing San Marcos, supra, 42 Cal.3d 154, the District also contends that the County's "demand" under CEQA that the District pay road improvement fees or spend funds for street improvements is "functionally equivalent" to a prohibited "special assessment," and any such payment by the District would be a "gift of public funds" in contravention of article XVI, section 6 of the California Constitution. We reject these contentions and conclude the District's reliance on San Marcos is unavailing.

In San Marcos, the California Supreme Court held that a school district was not obligated to pay a sewer capacity fee imposed by a water district because the fee was "a special assessment which has not been authorized by the Legislature." (San Marcos, supra, 42 Cal.3d at p. 168.) The high court explained that a special assessment is a compulsory charge imposed on particular real property for a public improvement of direct benefit to that property. (Id. at pp. 161-162; see also Loyola Marymount University v. Los Angeles Unified School Dist. (1996) 45 Cal.App.4th 1256, 1268.) The Supreme Court also explained in San Marcos that "[t]he rationale behind a public entity's exemption from . . . special assessments is to prevent one tax-supported entity from siphoning tax money from another such entity; the end result of such a process could be unnecessary administrative costs and no actual gain in tax revenues. [Citation.]" (San Marcos, supra, 42 Cal.3d at p. 161, italics added.)

San Marcos is inapplicable here because it did not involve CEQA. Furthermore, the District's mitigation obligation under CEQA cannot be construed under that case as a compulsory charge imposed for a public improvement of direct benefit to the District's property. Rather, that obligation is a CEQA requirement that (1) directly benefits the environment, both on and off the Cuyamaca College campus; (2) is incorporated into the Community College Construction Act of 1980 by means of implementing administrative regulations (Cal. Code Regs., tit. 5, §§ 57100, subds. (a), (c), & 57121, subd. (f), discussed, ante); and (3) is imposed under CEQA's "substantive mandate" (discussed, ante) only where, as here, the District itself undertakes a project that significantly and adversely affects the environment. In any event, the District is implicitly authorized under the Community College Construction Act of 1980, Education Code section 81949, and the provisions of the aforementioned regulations to spend funds on project-related off-campus road and intersection improvements as mitigation measures under CEQA, and thus even if the District's obligation to mitigate its adverse off-campus traffic impacts could be construed as a compulsory charge, it would not be a special assessment because the expenditure of the District's funds to meet that obligation is legislatively authorized. (See San Marcos, supra, 42 Cal.4th at p. 161.) We conclude that the District's mitigation obligation under CEQA is not a prohibited special assessment, and the District's claim that it lacks legislative authorization to mitigate its project's significant adverse off-campus traffic impacts is unsupported by the administrative record or applicable law.

The District's reliance on Government Code section 54999.1, subdivision (d)[10] (hereafter Government Code section 54999.1(d)) is also unavailing. That subdivision is found in what the California Supreme Court has called the "San Marcos Legislation" (Gov. Code, §§ 54999-54999.6; Stats. 1988, ch. 52, § 1, p. 310), which the Legislature adopted in response to the Supreme Court's decision in San Marcos, supra, 42 Cal.3d 154. (See Utility Cost Management v. Indian Wells Valley Water District (2001) 26 Cal.4th 1185, 1189 (Utility Cost Management).)

The San Marcos Legislation partially abrogated the San Marcos decision, as shown by Government Code section 54999, subdivision (b), which states: "The Legislature . . . finds that the holding in [San Marcos, supra,] 42 Cal.3d 154, should be revised to authorize payment and collection of capital facilities fees subject to the limitations set forth in this chapter, and in furtherance of this finding the Legislature hereby enacts the following provisions." Noting that there was no legislative authority for imposing capital facilities fees on public entities prior to the San Marcos Legislation, the Supreme Court explained in Utility Cost Management that section 54999.2 "authorizes public utilities to impose a 'capital facilities fee' on public entities 'except as provided in Section 54999.3,' and section 54999.1 defines a ' "capital facilities fee" ' as 'any nondiscriminatory charge to pay the capital cost of a public utility facility.' Section 54999.3 enumerates restrictions applicable when a public utility imposes the fees on either a state agency or an educational entity[.] In these circumstances, the fee must be 'necessary to defray the actual construction costs of that portion of a public utility facility actually serving' the agency or educational entity. [Citation.]" (Utility Cost Management, supra, 26 Cal.4th at pp. 1189-1190, italics omitted.)

Citing Government Code section 54999.1(d), the District asserts that "the Legislature has never stated that a community college may use its education funds to pay for off-campus traffic infrastructure ─ even though it . . . promulgated the list of permissible fees that may be charged against public entities for offsite public infrastructure improvements." The District's reliance on Government Code section 54999.1(d) is misplaced, however, because the San Marcos Legislation makes no mention of CEQA, and the underlying San Marcos decision that was partially abrogated by that legislation did not involve CEQA or the issue of traffic mitigation. These omissions show the Legislature's understanding that CEQA traffic mitigation obligations were unaffected by both San Marcos and the San Marcos Legislation, including Government Code section 54999.1(d).

Because the District is authorized by the Legislature to spend public funds to mitigate the off-campus adverse traffic impacts at issue in this case, and the District's CEQA mitigation obligation cannot be construed as a prohibited special assessment, we also conclude that any such expenditure by the District would not be a gift of public funds prohibited by article XVI, section 6 of the California Constitution.

D. Claim of Economic Infeasibility

The District's claim of economic infeasibility is based on its assertion that 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." The District maintains that its finding of infeasibility is supported by substantial evidence. The County argues that the administrative record contains no evidence of economic infeasibility.

For purposes of CEQA, and as already discussed, the term "feasible" means "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.)

Here, the administrative record contains no estimate of the cost of the District's proportional share of the off-campus traffic mitigation measures identified in the final EIR. Without evidence of the amount of any such cost, we must conclude there is no substantial evidence to support the District's claim that mitigation of the adverse project-related off-campus traffic impacts is economically infeasible.

In sum, because the District's infeasibility findings are not supported by substantial evidence or applicable law, we conclude the District prejudicially abused its discretion by certifying the final EIR, adopting the statement of overriding considerations and related CEQA findings, and approving the master plan.[11] (§ 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"]; Mira Mar Mobile Community, supra, 119 Cal.App.4th at p. 486.)

DISPOSITION

The judgment is reversed, and the matter is remanded to the superior court with directions to issue a peremptory writ (1) vacating the District's certification of the final EIR, its adoption of the CEQA findings and the statement of overriding considerations, and its approval of the master plan; and (2) ordering the District not to take any further action to approve the project without the preparation, circulation and consideration under CEQA of a legally adequate environmental impact report with regard to the off-campus traffic mitigation issues. The County shall recover its costs on appeal.

CERTIFIED FOR PUBLICATION

NARES, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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Analysis and review provided by El Cajon Real Estate Attorney.

[1] See footnote 6, ante.

[2] CEQA Guidelines section 15093 provides in full: "(a) CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits of a proposal project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered 'acceptable.' [¶] (b) When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record. The statement of overriding considerations shall be supported by substantial evidence in the record. [¶] (c) If an agency makes a statement of overriding considerations, the statement should be included in the record of the project approval and should be mentioned in the notice of determination. This statement does not substitute for, and shall be in addition to, findings required pursuant to Section 15091."

[3] CEQA Guidelines section 15093, subdivision (b) provides in part: "The statement of overriding considerations shall be supported by substantial evidence in the record."

[4] Section 21004 provides: "In mitigating or avoiding a significant effect of a project on the environment, a public agency may exercise only those express or implied powers provided by law other than this division. However, a public agency may use discretionary powers provided by such other law for the purpose of mitigating or avoiding a significant effect on the environment subject to the express or implied constraints or limitations that may be provided by law."

[5] Section 15040, subdivision (b) of the CEQA Guidelines provides that "CEQA does not grant an agency new powers independent of the powers granted to the agency by other laws." Subdivision (e) of that CEQA Guideline provides that "[t]he exercise of discretionary powers for environmental protection shall be consistent with express or implied limitations provided by other laws."

[6] The administrative record does not identify the amount of funds the District receives under either section of article 16 of the California Constitution.

[7] California Code of Regulations, title 5, section 57100, subdivision (a) provides: "The regulations adopted under this Chapter [i.e., Chapter 8 ('Construction') of Division 6 ('California Community Colleges')] are pursuant to the California Environmental Quality Act of 1970 (division 13 commencing with section 21000 of the Public Resources Code) and Guidelines adopted by Secretary for Resources in Division 6, Title 14, California Administrative Code." Subdivision (c) of that regulation provides that "[i]t is the intent of the Board of Governors to adopt in substance the [CEQA] Guidelines adopted by the Secretary for Resources in division 6, title 14, California Administrative Code, section 15000 et seq."

[8] The administrative record shows that the District offered to "participate" with the County "to the extent permitted by law" with respect to some of the traffic mitigation measures identified in the final EIR. Table 1 of Section 3.0 ("Mitigation Monitoring Program") of the master plan in the final EIR indicates more specific measures for such participation.

[9] Education Code section 81606 provides in full: "The governing board of any community college district may grade, pave, construct sewers, or otherwise improve streets and other public places in front of real property owned or controlled by it, and also may construct in immediate proximity to any school or site owned or controlled by the District, pedestrian tunnels, overpasses, footbridges, sewers and water pipes when required for school or administrative purposes, may acquire property, easements and rights-of-way for such purpose, and may appropriate money to pay the cost and expense of the improvements, whether made by the board under contract executed by the board, or under contracts made in pursuance of any of the general laws of the state respecting street improvements, or under other contracts made in pursuance of the charter of any County or municipality."

[10] Government Code section 54999.1(d) provides: " 'Public utility facility' means a facility for the provision of water, light, heat, communications, power, or garbage service, for flood control, drainage or sanitary purposes, or for sewage collection, treatment, or disposal."

[11] In light of the foregoing determinations, we need not, and do not, address the question of whether the District's statement of overriding considerations is supported by substantial evidence. Section 21081(b) (discussed, ante) indicates that the obligation to adopt a statement of overriding considerations is triggered only when an agency makes a finding under subdivision (a)(3) of that section that certain considerations "make infeasible the mitigation measures or alternatives identified in the EIR. (See Remy et al., Guide to Cal. Environmental Quality Act, supra, p. 343.) Here, for reasons already discussed, reversal is required because the District's infeasibility finding under section 21081(a)(3) is not supported by applicable law or substantial evidence. We also need not decide whether the District is a "state agency" within the meaning of section 21106, which provides that "[a]ll state agencies, boards and commissions shall request in their budgets the funds necessary to protect the environment in relation to problems caused by their activities." This issue was the subject of the parties' supplemental letter briefing requested by this court on March 8, 2006.