LANDVALUE 77, LLC v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY








Filed 2/23/11 Certified for partial publication 3/16/11 (order attached)










IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

LANDVALUE 77, LLC et al., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY et al., Defendants and Respondents; KASHIAN ENTERPRISES, L.P., Real Party in Interest and Respondent.

F058451 (Super. Ct. Nos. 07CECG02872 & 07CECG02874) OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge.
Doyle & Schallert, David Douglas Doyle; Stoel Rives, Melissa A. Foster and Lee N. Smith for Plaintiffs and Appellants.
Crowell & Moring, Ethan P. Schulman, Margaret Dollbaum, Gregory D. Call, and Nathanial J. Wood for Defendants and Respondents.
McDonough Holland & Allen; Best, Best & Krieger, Kimberly E. Hood, and Harriet A. Steiner for Real Parties in Interest and Respondents.

This appeal concerns a mixed-use development project involving 45 acres of land located on the Fresno campus of the California State University. The development is known as the Campus Pointe project and is being completed by a private developer that subleased the land from an auxiliary organization of the university. The development plans include apartments for students, faculty, employees and seniors, offices and retail stores, a hotel, and a 14-screen movie theater.
Appellants sued, challenging the approval of the project. They alleged a university trustee violated a conflict of interest statute, and the project's environmental impact report (EIR) failed to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).
The trial court found a conflict of interest prohibited by Government Code section 1090^[1] and voided a theater sub-sublease between the developer and a trustee of the university. The trial court also concluded the final EIR inadequately analyzed environmental impacts involving (1) the water supply, (2) traffic and parking, and (3) air quality.
Appellants appealed, claiming the remedies imposed by the trial court were inadequate. Appellants contend the trial court should have remedied the conflict of interest by voiding the approval of the entire project, not just the theater sub-sublease. Appellants contend the provisions of CEQA required the trial court to (1) issue the peremptory writ required by its own judgment and CEQA, (2) issue an injunction to prevent the further construction of the project, and (3) mandate specific actions, such as completion of a traffic study, to address the shortcomings of the EIR identified in the trial court's written statement of decision.
We conclude that (1) the trial court was required by Public Resources Code section 21168.9 to issue a writ of mandate and (2) the judgment and writ of mandate should direct that the certification of the final EIR and the approvals of the project be set aside. The trial court did not, however, abuse its discretion in refusing to enjoin construction.
We also conclude that the violation of the conflict of interest prohibition in section 1090 did not require a broader remedy than imposed by the trial court.
The judgment is affirmed in part and reversed in part. The trial court shall modify the judgment and issue a writ of mandate in accordance with this opinion.
FACTS
Parties
Appellants in this case are (1) LandValue 77, LLC, (2) LandValue Management, LLC and (3) James Huelskamp. James Huelskamp is a resident of Fresno County and is the managing member of both limited liability companies. LandValue 77, LLC owns the Sierra Vista Mall in Clovis, California. LandValue Management, LLC manages the Sierra Vista Mall for LandValue 77, LLC. Sierra Vista Mall is located about three miles east of the Campus Pointe project.
Respondents are (1) California State University, (2) the Board of Trustees of California State University (Board of Trustees), (3) California State University, Fresno Association, Inc. (CSUF Association), (4) Maya Cinemas North America, Inc. (Maya Cinemas), (5) Moctesuma Esparza, and (6) Kashian Enterprises, L.P.
Moctesuma Esparza was a member of the Board of Trustees from July 2004 until he resigned in May 2007. In 2007, before his resignation, Esparza served as the vice chair of the Board of Trustees's committee on campus planning, buildings and grounds. Esparza is the chief executive officer of Maya Cinemas and a shareholder in that corporation.
Kashian Enterprises, L.P.'s general partner is Edward M. Kashian, who also is the chief executive officer of Lance-Kashian & Company, a California corporation. For purposes of this opinion, we refer to Kashian Enterprises, L.P. and its affiliated entities as Kashian Enterprises. The affiliated entities include, without limitation, Campus Pointe Commercial, L.P. (Kashian Enterprises, L.P. owns 15 percent of this limited partnership and Lance-Kashian & Company is its general partner).
CSUF Association, a California nonprofit public benefit corporation, is an auxiliary organization of the California State University authorized by Education Code section 89900 et seq. (See Ed. Code, § 89901 [â€