MARINA v. BOARD OF TRUSTEES

Filed 7/31/06

IN THE SUPREME COURT OF CALIFORNIA

CITY OF MARINA et al., )

) S117816

Plaintiffs and Respondents, )

) Ct.App. 6 H023158

v. )

) Monterey County

BOARD OF TRUSTEES OF THE ) Super. Ct. Nos.

CALIFORNIA STATE UNIVERSITY, ) M41795 & M41781

)

Defendant and Appellant. )

_______________________________________ )

Story Continue from Part I……..

II. Discussion

The question before us is whether the Trustees have properly certified the EIR for CSUMB and, on that basis, approved the Master Plan. FORA contends the Trustees' decision must be vacated because three findings critical to their decision depend on an erroneous legal assumption, namely, that the California Constitution precludes them from contributing to FORA, even for the purpose of mitigating the environ mental effects identified in the EIR, except as expressly permitted by chapter 13.7 of the Government Code (§ 54999 et seq.). The first two challenged findings are (1) that the Trustees cannot feasibly mitigate CSUMB's significant environmental effects and (2) that to mitigate CSUMB's effects is not the Trustees' responsibility. These two findings have, in turn, necessitated the third, which is (3) that overriding considerations justify certifying the EIR and approving the Master Plan despite the remaining unmitigated effects. (See generally Pub. Resources Code, § 21081.) We conclude FORA is correct and that the Trustees have abused their discretion.

We review the Trustees' decision, as CEQA directs, under the abuse of discretion standard. (See Pub. Resources Code, § 21168.5.) For these purposes, â€