Wednesday, September 15, 2010

UC Regents' EIR and Approval Upheld Despite Numerous Alleged Deficiencies

California Oak Foundation v. Regents of the University of California (Sept. 3, 2010) No. A122511, available at CourtWebsite.

The California Oak Foundation and others filed petitions challenging the Regents of the University of California’s certification of an EIR and approval of a project for building athletic facilities at the Berkeley campus. The Oak Foundation alleged that the EIR was inadequate under CEQA in its (1) description of baseline conditions; (2) project description; (3) statement of objectives; (4) discussion of alternatives; and (5) discussion of biological and archaeological impacts. It also alleged improper (1) delegating of authority to certify the EIR to the Regents’ Committee on Grounds and Buildings; (2) giving approval to the project before certifying the EIR; (3) failing to recirculate the Draft EIR; and (4) making findings and a statement of overriding considerations without evidentiary support. The court rejected all of these arguments.

First, the court found that the EIR accurately described the existing baseline conditions, and the geotechnical study made available after DEIR circulation adequately matched up with that baseline. Release of the study after circulation also did not require recirculation because it did not constitute significant new information and merely confirmed information already stated. The court held that omitting discussion of the California Geological Survey and United States Geological Survey comment letters was of no consequence because they did not show that the conclusions in the geology report were erroneous.

The court found the project’s description complied with CEQA Guidelines, section 15124. Evidence supported the degree of specificity used. The methodology for presenting and analyzing project alternatives in matrix and narrative format was appropriate despite some broad wording. The significant environmental impacts and corresponding components of each of the alternatives were evaluated against the corresponding component of the project, thus demonstrating a good faith effort to provide a meaningful discussion of a range of reasonable project alternatives, which according to the court was all that CEQA requires. Finally, substantial evidence supported the Regents’ conclusions on archeological and biological resources, their findings, and the statement of overriding considerations.

The court held that the Committee on Grounds and Buildings appropriately certified the EIR based on its approval authority over the project. Further, the project was not approved before certifying the EIR because the Regents’ policy related to its earlier approval of funding did not constitute project approval until completion of the project’s design review.

Therefore, the court affirmed the denial of the California Oak Foundation’s petition for writ of mandate and upheld the EIR certification and project approval.

Petitioning Group’s Request for Hearing Should Have Been in Writing

Torrey Hills Community Coalition v. City of San Diego (July 2, 2010) 186 Cal.App.4th 429, available at CourtWebsite.

In this case, Torrey Hills Community Coalition did not request a hearing in writing within 90 days of filing a writ petition alleging that the City of San Diego violated CEQA. The court held that Torrey Hills’ failure to make the request for a hearing in writing was a violation of CEQA, pursuant to Public Resources Code, section 21167.4, subdivision (a).

According to Torrey Hills, section 21167.4, subdivision (a), does not refer to a written request, and thus its oral request for a hearing before the deadline should have been considered sufficient. The court, however, found that when the subdivision (a), (b), and (c) are read together, as previously explained in County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, it is clear that the request for a hearing under subdivision (a) must be in writing in order for the filing of the request -- pursuant to subdivisions (b) and (c) -- to operate.

The court also rejected Torrey Hills’ argument that it would have been futile to file a written request for a hearing. First, the court found that Torrey Hills failed to show diligence, when the deadline to file the request lapsed. Additionally, despite the court clerk having stated a preference for not immediately “setting” the hearing date, section 21167.4 merely requires the petitioner to file a request for a hearing. It does not require the petitioner to obtain a hearing date, and pursuant to subdivision (c), a hearing date could have been obtained later upon application by any party. Thus, the court affirmed that Torrey Hills violated section 21167.4, subdivision (a), by not filing a written request for a hearing.