East Meadow Action Committee v. The Regents of the University of Cal. CA6 ( 2022 )

Filed 2/4/22 East Meadow Action Committee v. The Regents of the University of Cal. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
EAST MEADOW ACTION H048695
COMMITTEE, (Santa Cruz County
Plaintiff and Appellant, Super. Ct. No. 19CV01312)
v.
THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA et al,
Defendants and Respondents;
CAPSTONE DEVELOPMENT
PARTNERS LLC, et al,
Real Parties in Interest and
Respondents.
I. INTRODUCTION
This case arises from the proposal of the University of California, Santa Cruz (UC
Santa Cruz), to build new student housing in accordance with the 2005 long range
development plan (LRDP) for the campus. The 2005 LRDP was accompanied by the
2005 program environmental impact report (EIR) that was prepared pursuant to CEQA1
to evaluate the environmental effects of the campus growth anticipated in the 2005
1
California Environmental Quality Act, Public Resources Code section 21000, et
seq. All further statutory references are to the Public Resources Code unless otherwise
indicated.
LRDP. In 2019, respondents the Regents of the University of California (Regents)
approved the Student Housing West [SHW] project, which included building family
student housing on a portion of the UC Santa Cruz campus known as the East Meadow.
The project-level EIR for the SHW project was tiered from the 2005 LRDP program EIR.
East Meadow Action Committee, “an unincorporated association of current and
former [UC Santa Cruz] staff, students, and alumni, as well as residents and taxpayers of
and within the City of Santa Cruz and the County of Santa Cruz,” challenged the
Regents’ approval of the SHW project by filing a petition for writ of mandamus alleging
violations of CEQA’s requirements for environmental review.
The trial court granted the petition for writ of mandamus to the extent it asserted
that the Regents’ findings regarding the infeasibility of the SHW project alternatives did
not comply with CEQA, and denied the petition as to all other claims of CEQA
violations. The court ordered that a peremptory writ of mandate issue directing the
Regents to correct the CEQA error regarding the infeasibility of the project alternatives,
and staying all SHW project activities until the error is corrected.
In its appeal, East Meadow Action Committee contends that the trial court erred
because : (1) tiering the SHW project EIR from the 2005 LRDP program EIR was
improper; (2) the SHW project EIR failed to analyze cumulative impacts; and (3) the trial
court improperly limited the scope of the peremptory writ of mandate. For the reasons
stated below, we find no merit in these contentions and we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The 2005 LRDP
As stated in the 2005 LRDP, 2 the 2005 LRDP “provides a comprehensive
framework for the physical development of the UC Santa Cruz campus over a 15-year
2“The University of California is required periodically to develop a
comprehensive, long-range development plan . . . to guide development for each campus,
based on the academic goals and projected enrollment for that campus. (Ed. Code,
2
period. It includes a land-use map to guide capital construction and infrastructure
development to accommodate a building program for campus growth. The 2005 LRDP
accommodates a projected fall-winter-spring average student enrollment of up to
19,500 students through 2020 (an increase of approximately 5,100 over the 2003–04 total
enrollment), with associated increases in faculty and staff.”3 The development of
additional student housing, including housing for undergraduate and graduate students, as
well as family student housing, was anticipated.
The land use designations included in the 2005 LRDP include academic core,
campus support, colleges and student housing, employee housing, physical education and
recreation, campus resource land, campus natural reserve, site research and support,
protected landscape, and campus habitat reserve.
Relevant here, the designation “campus resource land” is described in the
2005 LRDP as follows: “This land-use designation is assigned to lands that are not
planned for development under the 2005 LRDP. It is envisioned that these lands would
be maintained in their natural state to serve as long-term reserve lands for future use. In
the event that the campus determines during the term of the 2005 LRDP that it needs to
develop some portion of this land, it will conduct additional environmental review and
will seek an LRDP amendment.”
§ 67504, subd. (a)(1).) Under section 21080.09, the development plan must be analyzed
in an environmental impact report (EIR) under CEQA. (§ 21080.09, subd. (b).)” (Save
Berkeley’s Neighborhoods v. Regents of University of California (2020) 51 Cal.App.5th
226, 231.)
3
This court previously noted that “[i]n or about 2005 UCSC approved a long-
range development plan that called for a significant expansion of its student population
and the addition of 3,175,000 gross square feet of building space. Concerned about the
impact the proposed expansion would have upon City [of Santa Cruz] services, City and
others attacked the plan with lawsuits of their own. In August 2008 those actions were
resolved by a comprehensive settlement agreement.” (Community Water Coalition v.
Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1321.)
3
“Family student housing” is described in the 2005 LRDP as “serv[ing]
undergraduate and graduate student couples with and without children, as well as single
parents. . . . Existing family student housing facilities (199 units) have reached the end of
their lifespan as determined by extensive structural analysis and need replacement.
Phased redevelopment of this area is projected during this LRDP to provide improved
replacement facilities and better utilization of the site. Additional family student housing
units may be developed in other locations, preferably on the west side in the vicinity of
existing facilities.”
Regarding the portion of the UC Santa Cruz campus known as the East Meadow,
the 2005 LRDP states that “[n]ew development in the lower East Meadow between Hagar
Drive and Coolidge Drive will be minimized to maintain the overall sense of an open
meadow landscape.”
B. The Program EIR
The 2005 LRDP was accompanied by a draft program EIR that assessed the
potentially significant environmental effects of the campus growth anticipated in the
2005 LRDP.4 The draft program EIR stated that the anticipated campus growth included
“an increase in enrollment and increased academic and research activities at [UC Santa
Cruz] to meet the projected educational and research demand through academic
year 2020-21.”
4
“A program EIR is an EIR which may be prepared on a series of actions that can
be characterized as one large project and are related either: [¶] (1) Geographically,
[¶] (2) As logical parts in the chain of contemplated actions, [¶] (3) In connection with
issuance of rules, regulations, plans, or other general criteria to govern the conduct of a
continuing program, or [¶] (4) As individual activities carried out under the same
authorizing statutory or regulatory authority and having generally similar environmental
effects which can be mitigated in similar ways.” (Cal. Code Regs. tit. 14, § 15168.) “The
regulations that guide the application of CEQA are set forth in title 14 of the California
Code of Regulations and are often referred to as the CEQA Guidelines. [Citation.]”
(Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1561, fn. 5;
hereafter CEQA Guidelines or Guidelines.)
4
More specifically, the draft program EIR noted that “[t]o accommodate the
projected growth in enrollment and research activities, the 2005 LRDP accommodates a
building program that envisions the development of an additional 2.6 million gross
square feet (gsf2) of academic and support space on the campus, and the development of
1.5 million gsf of housing, which would provide an additional 3,390 student bed spaces
and 125 units of employee housing on campus.”
The draft program EIR also included a project-level assessment of the
environmental impact of three specific projects, including the “Family Student Housing
Redevelopment Project.” Under this project, “UC Santa Cruz proposes to demolish the
existing 199-unit family student housing complex on Heller Drive on the main campus,
and to redevelop the site with 400 apartment units. . . .” The proposed site of the
redeveloped family student housing complex was the 25-acre existing site, which is
“located near the western edge of the campus south of Porter College, on the west side of
Heller Drive, just inside the west entry to the campus.”
In its discussion of landscape and open space, the draft program EIR stated that
the East Meadow was a valued natural feature on the campus and was designated as a
scenic resource. The draft EIR also stated that “[t]here would be no new development in
the lower East Meadow, to further maintain the overall sense of an open meadow
landscape.”
In 2006, the Regents certified the 2005 final program EIR and approved the
2005 LRDP. The final program EIR did not include any “refinements” to the family
student housing project analyzed in the draft program EIR and a recirculated draft
program EIR.
C. The Proposed Student Housing West Project and Project EIR
In 2014, UC Santa Cruz began planning the SHW project, which included the
development of 3000 beds of additional student housing to, among other things, meet the
projected demand for student housing on campus. In 2017, UC Santa Cruz issued
5
requests for proposals from private entities to design, construct and maintain the
proposed SHW project in a private-public partnership known as a P3. UC Santa Cruz
then selected P3 partners, Capstone Development Partners LLC (the project developer)
and Collegiate Housing Foundation (ground lease), with a plan to develop student
housing on two sites, including the majority of the housing on a site west of Heller Drive
(the Heller site) and a smaller number of student housing units on a second site at the
intersection of Coolidge and Hagar Roads (the Hagar site in the East Meadow).
In November 2017 UC Santa Cruz issued a revised notice of preparation for the
proposed SHW project EIR. The draft project EIR for the SHW project was issued in
2018 and subsequently replaced by a revised draft EIR (RDEIR). The RDEIR states that
it is tiered from the 2005 LRDP EIR and relies on the 2005 LRDP EIR for (1) “A
discussion of general background and setting information for environmental topic areas;”
(2) “Overall growth-related issues;” (3) “Issues that were evaluated in sufficient detail in
the 2005 LRDP EIR for which there is no significant new information or change in
circumstances that would require further analysis; and (4) “An assessment of cumulative
impacts.”
The project description in the RDEIR states that the portion of the SHW project
proposed for the 13-acre Heller site includes “the demolition of the existing [family
student housing] complex and the construction of new housing, parking, and other
support spaces. The proposed project would construct five buildings with apartments and
co-housing style units that would provide approximately 2,712 undergraduate student
beds.” Additionally, the Heller site would include a sixth building providing
approximately 220 beds for graduate students, as well as support facilities, administrative
services, and various amenities.
The portion of the SHW project proposed for the 17-acre Hagar site includes
construction of a new family student housing complex consisting of two-story
townhouses providing approximately 140 student beds, plus a playground, community
6
center, childcare center, a maintenance building, and parking. The project description for
the Hagar site also states that “[t]he development of student housing on the Hagar site
would require an amendment of the 2005 LRDP to change the land use designation of the
site from Campus Resource Land to Colleges and Student Housing.”
The environmental impacts of the proposed SHW project and the mitigation
measures were discussed in detail in the RDEIR. In summary, the RDEIR stated that it
“concludes that implementation of the proposed project would result in significant or
potentially significant impacts in eight resource areas: aesthetics, air quality; biological
resources; cultural resources; geology and soils; hydrology and water quality;
transportation and traffic; and utilities. With four exceptions, all of the significant and
potentially significant impacts of the proposed project would be reduced to a less than
significant level with the incorporation of LRDP and project-specific mitigation measures
into the proposed project. The exceptions would be significant and unavoidable project
impacts in the area of aesthetics on scenic vistas, scenic resources, and visual
character/quality, and a significant and unavoidable impact on water supply.”
Regarding the Hagar site, the RDEIR further concluded that “implementation of
the project would substantially degrade the visual character or quality of the Hagar site,
that no mitigation was feasible,” and that the impact was “significant and unavoidable.”
The RDEIR also analyzed seven project alternatives for the SHW project, including a no
project alternative, that did not involve development of the Hagar site.
The final EIR (FEIR) for the SHW project was released in 2019. The FEIR
includes the RDEIR, the comments received on the RDEIR and a list of the commenters,
the responses of the UC Santa Cruz as the lead agency to significant environmental points
raised in the review and consultation process, and other information added by UC Santa
Cruz.
7
D. The Regents’ Approval of the Project
At a public meeting held in March 2019 regarding the SHW project, the Regents’
Finance and Capital Strategies Committee was asked to recommend the following actions
to the Regents, as recommended by the President of UC Santa Cruz: (1) certify the EIR;
(2) adopt the mitigation monitoring and reporting program and the CEQA findings and
the statement of overriding considerations;5 (3) approve amendment No. 2 to the 2005
LRDP to change the land use designation of the 17-acre Hagar site from Campus
Resource Land to Colleges and Student Housing; and (4) approve the design of the SHW
project.
The Finance and Capital Strategies Committee then recommended that the
Regents take all four actions on the SHW project as recommended by UC Santa Cruz,
with the exception that item No. 4 was revised as follows: “Approve the design of the
Student Housing West project, Santa Cruz campus, subject to approval by Regents
Makarechian, Cohen, and Park to confirm the price of the other alternatives within two
weeks.”
On March 14, 2019, the Regents certified the EIR, adopted the mitigation and
reporting system, adopted the CEQA findings and statement of overriding considerations,
approved amendment No. 2 to the 2005 LRDP to change the land use designation of
17 acres of campus resource land to colleges and student housing; and “[a]pproved the
design of the [SHW project], subject to approval by Regents Makarechian, Cohen, and
Park to confirm the price of the other alternatives within two weeks.”
5
The statement of overriding considerations concludes that “[c]onsidering all
factors and the evidence in the EIR and other relevant documents, The Regents finds that
specific economic, legal, social, technological, and other benefits of the [SHW] Project
outweigh the significant and unavoidable adverse environmental impacts of the [SHW]
Project. The Regents therefore finds that those significant adverse impacts are acceptable
in the context of the overall Project benefits.”
8
The record reflects that on March 29, 2019, the Regents approved the design of the
SHW project after receiving cost estimates for the project alternatives.
E. Writ Proceedings
1. Petition for Writ of Mandate
The East Meadow Action Committee filed a petition for writ of mandamus naming
the Regents and UC Santa Cruz as respondents and Capstone Development Partners LLC
and Collegiate Housing Foundation as real parties in interest. In its petition, the East
Meadow Action Committee sought a writ of mandamus setting aside the respondents’
approvals of the SHW project and amendment No. 2 to the 2005 LRDP.
The East Meadow Action Committee stated in its petition that it objected to the
development of the East Meadow, which it described “as an iconic gateway to [UC Santa
Cruz] and embodies the values and beauty of the [UC Santa Cruz] Main Campus.” The
East Meadow Action Committee also claimed that the SHW project would destroy over
20 percent of the East Meadow to construct a small amount of family student housing.
The following claims of CEQA violations were raised by the East Meadow Action
Committee in its writ petition: (1) EIR failed to adequately consider feasible alternatives
to the SHW project; (2) the Regents failed to consider alternatives that would avoid
significant impacts to the East Meadow: (3) the EIR failed to adequately analyze or
mitigate the significant environmental impacts of the project, including impacts to
grassland species; (4) the EIR erroneously relies on the 2005 LRDP EIR, which did not
consider impacts to the East Meadow; (5) the SHW project conflicts with the physical
design framework for the UC Santa Cruz campus; (6) the EIR failed to adequately
evaluate impacts to hydrology and water quality; (7) the EIR does not contain a legally
adequate cumulative impacts analysis; (8) respondents failed to provide adequate
mitigation to reduce the impacts of the SHW project to less than significant, and
(9) respondents did not adequately respond to comments.
9
2. The Trial Court’s Statement of Decision
By the time of the hearing on the merits of the writ petition, the CEQA issues had
been narrowed to the following: (1) whether the SHW project EIR was improperly tiered
from the 2005 LRDP program EIR; (2) whether the SHW project EIR failed to include an
analysis of cumulative impacts; (3) whether the SHW project EIR failed to conduct a
proper alternatives analysis at the EIR and final agency approval stages; and (4) whether
the SHW project was approved and the statement of overriding considerations adopted
without the Regents being provided with the necessary public information to make an
informed finding on the infeasibility of the project alternatives.
After holding further hearings on the matter, the trial court issued a statement of
decision on the petition for writ of mandate on October 30, 2020. The trial court’s
rulings in the statement of decision rejected all but one of East Meadow Action
Committee’s claims of CEQA violations, as follows.
Regarding the claim that the SHW project EIR was improperly tiered from the
2005 LRDP program EIR, the trial court found that the SHW project EIR could be tiered
because the amendment to the 2005 LRDP redesignated the Hagar site and the statutory
scheme allows tiering from a broad program EIR where a site-specific analysis is
conducted for the portions of a project not adequately addressed in the program EIR.
The trial court further found that the cumulative impacts analysis in the SHW
project EIR for the Hagar site was adequate because the SHW project EIR acknowledged
that the 2005 LRDP and the 2005 LRDP EIR did not include development of the Hagar
site and included an analysis of the cumulative impacts of the project, including
substantial evidence in the response to comments and the administrative record regarding
the cumulative impact on biological resources.
As to the alternatives analysis, the trial court first found that the alternatives
analysis in the SHW project EIR was adequate under the CEQA. However, the trial court
then ruled that the Regents had violated CEQA by improperly rejecting the alternatives to
10
SHW project as economically infeasible on the basis of a non-public cost analysis that
was delegated to a three-member committee. The trial court therefore granted the
petition for writ of mandate to the extent it asserted that the Regents’ findings regarding
the infeasibility of the SHW project alternatives did not comply with CEQA.
3. Judgment and Peremptory Writ of Mandate
The judgment granting in part and denying in part the East Meadow Action
Committee’s petition for writ of mandate was entered on October 30, 2020. The petition
was granted as to the claim that the Regents had violated CEQA and denied as to all other
claims.
The judgment also ordered that a peremptory writ of mandate issue directing
respondents to “to set aside the following actions, resolutions; and orders: (a) The
March 14, 2019 adoption of the CEQA Findings and Statement of Overriding
Considerations approving the Student Housing West Project at University of California,
Santa Cruz by the Regents of the University of California, as made final on
March 27, 2019; [¶] (b) The March 14, 2019 adoption of the Mitigation Monitoring and
Reporting program for the Student Housing West Project, as made final on
March 27, 2019; [¶] (c) The March 14, 2019 approval of the design of the Student
Housing West Project, as made final on March 27, 2019.”
Additionally, the judgment ordered that “[t]he peremptory writ of mandate shall
require the Regents as, a whole, prior to reconsidering approval of the Project and in
accordance with the requirements of CEQA, to consider any information regarding the
feasibility of alternatives, including economic information, and take such into account in
reconsidering approval of the Student Housing West Project.”
III. DISCUSSION
East Meadow Action Committee raises three CEQA issues on appeal: (1) tiering
the SHW project EIR from the 2005 LRDP program EIR was improper; (2) the SHW
project EIR failed to analyze cumulative impacts; and (3) the trial court improperly
11
limited the scope of the peremptory writ of mandate. We will begin our evaluation with
an overview of the principles that guide our review of the CEQA issues.
A. Overview of CEQA Principles
The California Supreme Court has provided an overview of CEQA principles:
“ ‘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.” ’ [Citations.] ‘With narrow
exceptions, CEQA requires an EIR whenever a public agency proposes to approve or to
carry out a project that may have a significant effect on the environment. [Citations.]’
[Citation; see Guidelines, § 15002, subd. (f).) The basic purpose of an EIR is to ‘provide
public agencies and the public in general with detailed information about the effect [that]
a proposed project is likely to have on the environment; to list ways in which the
significant effects of such a project might be minimized; and to indicate alternatives to
such a project.’ (Pub. Resources Code, § 21061; see Guidelines, § 15003, subds. (b)-(e).)
‘Because the EIR must be certified or rejected by public officials, it is a document of
accountability. If CEQA is scrupulously followed, the public will know the basis on
which its responsible officials either approve or reject environmentally significant action,
and the public, being duly informed, can respond accordingly to action with which it
disagrees.’ [Citation.] The EIR “protects not only the environment but also informed
self-government.’ [Citation.]” (Sierra Club v. City of Fresno (2018) 6 Cal.5th 502, 511-
512, fn. omitted (Sierra Club).)
Thus, “[a]s this court has observed, ‘the overriding purpose of CEQA is to ensure
that agencies regulating activities that may affect the quality of the environment give
primary consideration to preventing environmental damage. [Citation.]’ [Citation.]”
(Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141
Cal.App.4th 677, 687.)
12
B. Standard of Review
“In a CEQA case, the appellate court’s review ‘is the same as the trial court’s: [It]
reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial
review under CEQA is de novo.’ [Citation.]” (Protecting Our Water and Environmental
Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 495 (Protecting Our Water).)
Accordingly, “[t]he reviewing court independently determines whether the record
‘demonstrates any legal error’ by the agency and deferentially considers whether the
record ‘contains substantial evidence to support [the agency’s] factual determinations.’
[Citation.]” (Protecting Our Water, supra, 10 Cal.5th at p. 495.) “ ‘Substantial evidence
challenges are resolved much as substantial evidence claims in any other setting: a
reviewing court will resolve reasonable doubts in favor of the administrative decision,
and will not set aside an agency’s determination on the ground that the opposite
conclusion would have been equally or more reasonable. [Citations.]’ ” (Sierra Club,
supra, 6 Cal.5th at p. 515.) “If the agency’s determination ‘involves pure questions of
law, we review those questions de novo.’ [Citation.]” (Protecting Our Water, supra, 10
Cal.5th at p. 495.)
“ ‘Where an EIR is challenged as being legally inadequate, a court presumes a
public agency’s decision to certify the EIR is correct, thereby imposing on a party
challenging it the burden of establishing otherwise.’ [Citation.]” (California Native
Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 987.)
C. Tiering
East Meadow Action Committee contends that respondents violated CEQA by
tiering the SHW project EIR from the 2005 LRDP program EIR. We will begin our
evaluation of this contention with an overview of EIR tiering under CEQA.
13
1. Tiering Under CEQA
The Legislature has authorized public agencies to tier EIRS, as set forth in
section 21093.6 “Unlike ‘[p]roject EIR[s],’ which ‘examine[ ] the environmental impacts
of a specific development project’ (CEQA Guidelines, § 15161), the CEQA provisions
governing tiered EIRs ‘permit[] the environmental analysis for long-term, multipart
projects to be “tiered,” so that the broad overall impacts analyzed in an EIR at the first-
tier programmatic level need not be reassessed as each of the project’s subsequent,
narrower phases is approved.’ [Citation; see CEQA Guidelines, § 15152 [‘ “Tiering”
refers to using the analysis of general matters contained in a broader EIR (such as one
prepared for a general plan or policy statement) with later EIRs and negative declarations
on narrower projects; incorporating by reference the general discussions from the broader
EIR; and concentrating the later EIR or negative declaration solely on the issues specific
to the later project.’].)” (Friends of College of San Mateo Gardens v. San Mateo County
Community College Dist. (2016) 1 Cal.5th 937, 959.)
The Legislature also has authorized tiering of EIRs by public institutions of higher
education, as stated in section 21080.09, subdivision (c): “The approval of a project on a
particular campus or medical center of public higher education is subject to this division
and may be addressed, subject to the other provisions of this division, in a tiered
6
Section 21093 provides that “(a) The Legislature finds and declares that tiering
of environmental impact reports will promote construction of needed housing and other
development projects by (1) streamlining regulatory procedures, (2) avoiding repetitive
discussions of the same issues in successive environmental impact reports, and
(3) ensuring that environmental impact reports prepared for later projects which are
consistent with a previously approved policy, plan, program, or ordinance concentrate
upon environmental effects which may be mitigated or avoided in connection with the
decision on each later project. The Legislature further finds and declares that tiering is
appropriate when it helps a public agency to focus upon the issues ripe for decision at
each level of environmental review and in order to exclude duplicative analysis of
environmental effects examined in previous environmental impact reports. [¶] (b) To
achieve this purpose, environmental impact reports shall be tiered whenever feasible, as
determined by the lead agency.”
14
environmental analysis based upon a long range development plan environmental impact
report.”
Thus, as the California Supreme Court has instructed, “[u]nder CEQA’s tiering
principles, it is proper for a lead agency to use its discretion to focus a first-tier EIR on
only the general plan or program, leaving project-level details to subsequent EIR’s when
specific projects are being considered. (See [Guidelines], § 15152, subd. (b).)[7] This
type of tiering permits a lead agency to use a first-tier EIR to adequately identify
‘significant effects of the planning approval at hand’ while deferring the less feasible
development of detailed, site-specific information to future environmental documents.
(See id., § 15152, subd. (c).” (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1174-1175;
see also Guidelines § 15385 [definition of tiering].)
However, as this court has noted, under section 21094, subdivision (b)8 tiering
“applies only to a later project which the lead agency determines (1) is consistent with the
program, plan, policy, or ordinance for which an environmental impact report has been
7
Guidelines, § 15152, subdivision (b) provides in part: “Agencies are encouraged
to tier the environmental analyses which they prepare for separate but related projects
including general plans, zoning changes, and development projects. This approach can
eliminate repetitive discussions of the same issues and focus the later EIR or negative
declaration on the actual issues ripe for decision at each level of environmental review.
Tiering is appropriate when the sequence of analysis is from an EIR prepared for a
general plan, policy, or program to an EIR or negative declaration for another plan,
policy, or program of lesser scope, or to a site-specific EIR or negative declaration.”
8 Section 21094, subdivision (b) provides: “Where a prior environmental impact
report has been prepared and certified for a program, plan, policy, or ordinance, the lead
agency for a later project that meets the requirements of this section shall examine
significant effects of the later project upon the environment by using a tiered
environmental impact report, . . . . [¶] This section applies only to a later project that the
lead agency determines is all of the following: [¶] (1) Consistent with the program, plan,
policy, or ordinance for which an environmental impact report has been prepared and
certified. [¶] (2) Consistent with applicable local land use plans and zoning of the city,
county, or city and county in which the later project would be located. [¶] (3) Not subject
to Section 21166.”
15
prepared and certified, (2) is consistent with applicable local land use plans and zoning of
the city . . . in which the later project would be located, and (3) is not subject to
Section 21166 [EIR required when substantial changes in the project require major
revisions of a previously-prepared EIR].”9 (Gilroy Citizens for Responsible Planning v.
City of Gilroy (2006) 140 Cal.App. 4th 911, 927-928, fn. 13 (Gilroy Citizens).)
2. The Parties’ Contentions
East Meadow Action Committee contends that respondents violated CEQA by
tiering the SHW project EIR from the 2005 LRDP program EIR because the SHW
project is not consistent with the 2005 LRDP. According to East Meadow Action
Committee, the SHW project is inconsistent because it is not within the “development
footprint” of the 2005 LRDP and required an amendment to the 2005 LRDP to enable
development. Further, East Meadow Action Committee argues that under the
2005 LRDP development of the East Meadow is inconsistent with the planning principles
stated in the 2005 LRDP, and, in particular, the principle of maintaining open space and
meadows on the UC Santa Cruz campus.
East Meadow Action Committee also argues that the amendment to the
2005 LRDP to change the land use designation for the Hagar site in the East Meadow
from campus resource land to colleges and student housing constitutes a change in the
project that requires preparation of a subsequent or supplemental EIR under
section 21166.
9 Section 21166 provides: “When an environmental impact report has been
prepared for a project pursuant to this division, no subsequent or supplemental
environmental impact report shall be required by the lead agency or by any responsible
agency, unless one or more of the following events occurs: [¶] (a) Substantial changes
are proposed in the project which will require major revisions of the environmental
impact report. [¶] (b) Substantial changes occur with respect to the circumstances under
which the project is being undertaken which will require major revisions in the
environmental impact report. [¶] (c) New information, which was not known and could
not have been known at the time the environmental impact report was certified as
complete, becomes available.”
16
Respondents argue to the contrary that the SHW project is consistent with the
2005 LRDP due to the amendment changing the land use designation of the Hagar site to
colleges and student housing. According to respondents, because the LRDP is analogous
to a general plan, and an amendment to an LRDP is similar to rezoning, tiering is
therefore proper under Guidelines section 15152, subdivision (e), which provides:
“Tiering under this section shall be limited to situations where the project is consistent
with the general plan and zoning of the city or county in which the project is located,
except that a project requiring a rezone to achieve or maintain conformity with a general
plan may be subject to tiering.”
Respondents also maintain that the SHW project is consistent with the planning
principles articulated in the 2005 LRDP with respect to the East Meadow because the
family student housing portion of the project is low density and will be located “adjacent
to existing housing and two roadways, and leaving the vast majority of the East Meadow
undisturbed.”
Finally, respondents assert that the SHW project EIR was properly tiered from the
2005 LRDP program EIR because the SHW project EIR included a project-level analysis
of environmental impacts that were not addressed in the 2005 LRDP program EIR,
including “Aesthetics, Agriculture and Forest Resources, Air Quality, Biological
Resources, Land Use and Planning, Noise, Population and Housing, Public Services,
Cultural Resources, Geology and Soils, Greenhouse Gas Emissions, Hydrology and
Water Quality, Transportation and Traffic Utilities and Service Systems, Tribal Cultural
Resources, and Energy.”
3. Analysis
In the present case, we will independently determine whether tiering the SHW
project EIR from the 2005 LRDP program EIR constitutes legal error under CEQA, since
the essential facts are undisputed. (See Protecting Our Water, supra, 10 Cal.5th at
p. 495.)
17
To begin with, one of the purposes of the 2005 LRDP was to plan for the
development of the UC Santa Cruz campus to accommodate growth in campus
enrollment through 2020. The campus development anticipated in the 2005 LRDP
expressly included developing additional student housing for undergraduates, graduate
students, and students with families. The 2005 LRDP specifically stated that the
development plan included replacement of existing family student housing and the
development of additional family student housing in other locations on campus.
Therefore, development of family student housing on the Hagar site, as analyzed in the
SHW project EIR, is consistent with the 2005 LRDP as it pertains to family student
housing.
We also note that the East Action Meadow Committee does not dispute that the
2005 LRDP designated the Hagar site—the portion of the East Meadow where the family
student housing proposed in the SHW project will be located—as campus resource land.
Notably, the Hagar site was not designated either campus natural reserve, protected
landscape, or campus habitat reserve. “Campus resource land” is expressly defined in the
2005 LRDP as “lands that are not planned for development under the 2005 LRDP. It is
envisioned that these lands would be maintained in their natural state to serve as long-
term reserve lands for future use. In the event that the campus determines during the
term of the 2005 LRDP that it needs to develop some portion of this land, it will conduct
additional environmental review and will seek an LRDP amendment.”
Here, respondents determined, consistent with the 2005 LRDP, that it needed to
develop a portion of campus resource land located on the Hagar site in order to develop
family student housing, prepared a project-level EIR (the SHW project EIR) to conduct
additional environmental review, and sought an amendment to the 2005 to change the
land use designation of the Hagar site from campus resource land to colleges and student
housing. Moreover, as we have noted, the 2005 LRDP contemplated some development
in the vicinity of the Hagar site, as follows: “New development in the lower East
18
Meadow between Hagar Drive and Coolidge Drive will be minimized to maintain the
overall sense of an open meadow landscape.” Thus, the record shows that SHW project
is consistent with the 2005 LRDP within the meaning of section 21094, subdivision (b).
We are also not convinced by East Meadow Action Committee’s argument that the
amendment to the 2005 LRDP to change the land use designation for the Hagar site in the
East Meadow from campus resource land to colleges and student housing constitutes a
change in the project that requires preparation of a subsequent or supplemental EIR under
section 21166. As we have discussed, changing the land use designation of campus
resource land to allow development was expressly contemplated in the 2005 LDRP.
For these reasons, we determine that respondents did not err in tiering the SHW
project EIR from the 2005 LRDP program EIR. As our Supreme Court has stated,
“[t]iering is properly used to defer analysis of environmental impacts and mitigation
measures to later phases when the impacts or mitigation measures are not determined by
the first-tier approval decision but are specific to the later phases.” (Vineyard Area
Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,
431.)
C. Cumulative Environmental Impacts
The East Meadow Action Committee contends that the SHW project EIR violates
CEQA requirements for a discussion of a project’s cumulative environmental impacts.
We will begin with a background summary of the cumulative impacts discussion in the
SHW project EIR.
1. Background
The RDEIR for the SHW project states: “[T]his project-level Revised Draft EIR
is tiered from the 2005 LRDP EIR, a program-level EIR that evaluated the cumulative
effects of campus development and growth under the 2005 LRDP for a period of
approximately 15 years—2005 through 2020. It is appropriate for this EIR to rely on the
2005 LRDP EIR for evaluation of cumulative impacts because the proposed project is
19
within the scope of the growth anticipated and analyzed in the LRDP EIR, and CEQA
allows the use of a prior program EIR for this purpose.”
The RDEIR also states: “With respect to cumulative impacts stemming from the
development footprint of the project, e.g., cumulative impacts on biological and cultural
resources, this EIR addresses the increase in cumulative footprint impacts as appropriate,
and also demonstrates, with substantial evidence, that the project would not substantially
increase the severity of the previously disclosed impact. . . . [¶] This approach is used in
all resource sections except water supply, population and housing, and greenhouse gas
(GHG) emissions.”
The RDEIR’s discussion of cumulative impacts was also included in master
response No. 5 to comments on the DEIR, which, among other things, states: “As far as
future projects on the campus are concerned, the list of projects in RDEIR Table 4.0-1
(p. 4.0-6) shows that there are no reasonably foreseeable projects under the 2005 LRDP
that would affect grasslands. Based on projects that have been completed or are planned
to be completed under the 2005 LRDP per Table 4.0-1 and the proposed project,
development under the 2005 LRDP will affect a total of 23 acres of the 84 acres of
annual grassland habitat that was projected to be developed under the 2005 LRDP,
including about 17.2 acres of purple needlegrass grassland. Therefore, the development
of the Hagar site under the proposed project would not increase the magnitude of the
cumulative impact of LRDP development on annual grassland habitats that may support
some special-status plant species and provide nesting, foraging, and movement habitat for
special-status wildlife species.”
The RDEIR’s master response No. 5 to comments on the DEIR concluded, with
regard to the cumulative impacts of developing the Hagar site, that “[a]s the acreage of
habitat affected by the project is within the acreage analyzed in the 2005 LRDP EIR and
because the Hagar site is similar to the rest of the meadow/annual grassland areas, the
20
cumulative impacts of the proposed project are adequately addressed by the analysis in
the 2005 LRDP EIR and would be less than significant.”
Additionally, the SHW project FEIR’s response to comments includes the
following: “With respect to cumulative impacts stemming from the development of the
Hagar site, e.g., cumulative impacts on aesthetics, biological resources, cultural
resources, hydrology and water quality, the RDEIR specifically addresses the increase in
cumulative footprint impacts, and demonstrates, with substantial evidence, that the
project would not substantially increase the severity of the previously disclosed
cumulative impacts. As an example, see the discussion of cumulative impacts in Section
4.1, Aesthetics, where the updated cumulative analysis shows that the construction of the
project on the Hagar and Heller sites would not exacerbate the previously disclosed
cumulative impacts of the 2005 LRDP. Similar explanations and evidence are presented
in Section 4.3, Biological Resources, Section 4.4, Cultural Resources, and Section 4.7,
Hydrology and Water Quality, of the RDEIR. Also see Master Response 5: Biological
Resource Impacts on the East Meadow, which shows that Hagar site development will
not increase the magnitude of previously analyzed cumulative biological resource
impacts on grassland habitats.”
2. The Parties’ Contentions
East Meadow Action Committee contends that respondents violated the CEQA
requirements for the EIR’s discussion of cumulative impacts because the cumulative
impacts of the SHW project were not adequately addressed in the 2005 LRDP EIR, since
the 2005 LRDP did not contemplate development of the East Meadow, and development
of the East Meadow is inconsistent with the 2005 LRDP. Further, East Meadow Action
Committee argues that the SHW project EIR failed to discuss the cumulative impacts on
aesthetics, historical resources, and “conflicts with land use policies,” and also failed to
discuss the cumulative biological impacts, specifically the impact on grasslands.
21
According to respondents, the SHW project EIR properly analyzed the impacts to
wildlife, aesthetic, and visual impacts of development of the Hagar site at project level
without reliance on tiering, and the East Action Meadow Committee has not met its
burden to show that the analyses are not supported by substantial evidence. Further,
respondents point out that the SHW project EIR acknowledged that the 2005 LRDP and
2005 LRDP program EIR did not include development of the Hagar site, and analyzed
the cumulative impacts of developing that site.
3. Analysis
Under CEQA, “[a]n EIR must ‘discuss cumulative impacts of a project when the
project's incremental effect is cumulatively considerable,’ which “means that the
incremental effects of an individual project are significant when viewed in connection
with the effects of past projects, the effects of other current projects, and the effects of
probable future projects. ([Guidelines], §§ 15130, subd. (a), 15065, subd. (a)(3); see
§ 21083, subd. (b)(2).) An adequate discussion of significant cumulative impacts
ordinarily includes either ‘[a] list of past, present, and probable future projects producing
related or cumulative impacts’ or ‘[a] summary of projections contained in an adopted
local, regional or statewide plan, or related planning document, that describes or
evaluates conditions contributing to the cumulative effect. (Guidelines, § 15130,
subd. (b)(1).)” (Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council
(2010) 190 Cal.App.4th 1351, 1381, fn. omitted, disapproved on another ground in
Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57
Cal.4th 439, 457.)
With respect to tiered EIRs, Guidelines, section 15130, subdivisions (d) and (e)
provide in part: “A pertinent discussion of cumulative impacts contained in one or more
previously certified EIRs may be incorporated by reference pursuant to the provisions for
tiering and program EIRs. No further cumulative impacts analysis is required when a
project is consistent with a general, specific, master or comparable programmatic plan
22
where the lead agency determines that the regional or areawide cumulative impacts of the
proposed project have already been adequately addressed, as defined in section 15152(f),
in a certified EIR for that plan. [¶] If a cumulative impact was adequately addressed in a
prior EIR for a community plan, zoning action, or general plan, and the project is
consistent with that plan or action, then an EIR for such a project should not further
analyze that cumulative impact, as provided in Section15183(j).”
“If, on the other hand, the cumulative impact is insignificant or if the project’s
incremental contribution to the impact is not cumulatively considerable, the Lead Agency
is not required to conduct a full cumulative impacts analysis, but the EIR must include a
brief explanation of the basis for the agency's finding(s).” (San Francisco Baykeeper,
Inc. v. State Lands Com. (2015) 242 Cal.App.4th 202, 222.)
The standard of review that applies to the issue of whether an agency adequately
determined under CEQA that a project’s incremental effect is not cumulatively
considerable is substantial evidence. (Leonoff v. Monterey County Bd. of Supervisors
(1990) 222 Cal.App.3d 1337, 1358.); see also San Franciscans for Livable
Neighborhoods v. City & County of San Francisco (2018) 26 Cal.App.5th 596, 622 [“A
decision to not identify an impact as significant is reviewed for substantial evidence.”].)
The party challenging the agency’s findings in the EIR must affirmatively show
that there is no substantial evidence in the record to support the agency’s findings.
(California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603,
626.) This requires setting forth all of the evidence material to the agency’s finding, then
showing that the evidence could not reasonably support the finding. (Ibid.) “[S]imply
pointing to portions of the administrative record” that arguably supports the position of
the party challenging the EIR is insufficient. (Ibid.)
Here, the East Meadow Action Committee acknowledges in its reply brief that it
“is not arguing the sufficiency of the evidence. [Citation.] However, Appellant is
arguing that Respondents cannot tier the SHW Project EIR from the 2005 LRDP EIR
23
when it either conflicts [with] the 2005 LRDP EIR and its findings, and is inconsistent
with the program and policy adopted in 2005.” We understand the East Meadow Action
Committee to again argue that tiering in this case, including tiering of the cumulative
impacts discussion, violates CEQA because the SHW project’s development of the Hagar
site in the East Meadow is not consistent with the 2005 LRDP. However, as we have
discussed, we disagree and have determined that the record shows that SHW project is
consistent with the 2005 LRDP within the meaning of section 21094, subdivision (b).
Accordingly, we further determine that the East Meadow Action Committee has
not met its burden to show that the SHW project EIR’s discussion of cumulative impacts
with respect to the Hagar site is inadequate under CEQA.
D. Limited Writ
East Meadow Action Committee contends that the trial court erred in ordering a
limited peremptory writ of mandate that did not direct respondents to set aside their
approval of the LRDP amendment designating the East Meadow for development and
their certification of the EIR.
1. Background
The trial court rejected all of the East Meadow Action Committee’s claims of
CEQA violations, with one exception. The trial court ruled that the Regents’
consideration of the SHW project alternatives violated CEQA, as stated in the court’s
statement of decision: “When the Court evaluates the findings as it relates to the
Regent’s rejection of the various alternatives as infeasible, it is apparent that
consideration of costs were so inextricably intertwined with the claimed other ‘social,
legal or technological considerations’ that ultimately, as demonstrated by the actual
transcripts of the Regents’ approval of the project, that, the Regents were engaged in
nothing other than a cost analysis.”
Based on these findings, the trial court concluded that “[u]ltimately, it was
determined by the Regents to delegate review of the data, and the cost analysis, to a
24
subcommittee of three of its members. The three members evaluated that (non-public)
data, and based upon the recommendations of the three members, without appropriate
review of the data itself by the full Board of Regents, the project was approved. The
improper delegation to carry out the statutorily required balancing process renders the
ultimate approval a violation of CEQA. The petition is therefore granted to the extent it
asserts that the Regents’ findings regarding the infeasibility of alternatives do not comply
with CEQA.”
The trial court therefore ordered that a peremptory writ issue setting aside the
Regents’ project approvals of the SHW project, including (1) the Regents’ adoption of
the CEQA findings and statement of overriding considerations; (2) the Regents’ adoption
of the mitigation and reporting program; and (3) the Regents’ approval of the design of
the SHW project. The trial court also ordered that the peremptory writ direct “the
Regents as, a whole, prior to reconsidering approval of the Project and in accordance with
the requirements of CEQA, to consider any information regarding the feasibility of.
alternatives, including economic information, and take such into account in reconsidering
approval of the Student Housing West Project.”
The writ of mandate filed on October 30, 2020, also included a stay order directing
respondents to “[s]uspend any and all Project activities pursuant to or in furtherance of
the determinations, findings and decisions until Respondents have taken the specified
actions necessary to bring the determinations, findings and decisions into compliance
with CEQA.”
2. The Parties’ Contentions
According to Meadow Action Committee, the trial court’s ruling that the Regents’
finding of economic infeasibility of the SHW project alternatives did not comply with
CEQA is so inextricably intertwined with the SHW project EIR and the amendment to
the 2005 LRDP that the certification of the EIR and the amendment should should also be
set aside.
25
Respondents maintain that “[t]his writ was appropriately tailored to the specific
violation found by the trial court—that The Regents adopted the CEQA findings without
the full board’s consideration of the feasibility of alternatives.” Further, respondents
assert that “[t]he writ also required The Regents to set aside the design approval and the
[mitigation monitoring and reporting program] for the Project, in order to avoid prejudice
to the ability of The Regents, following consideration of the evidence for the feasibility
of alternatives, to potentially give design approval to a different alternative, to which a
different set of mitigation measures would apply. [Citation.] The trial court also ensured
that there would be no adverse change to the environment during this time by mandating
that The Regents suspend all Project activities pending reconsideration of the Project
approval in compliance with CEQA.”
3. Analysis
We agree with respondents that the trial court did not err in fashioning a writ that
is limited in scope. The trial court’s discretion in remedying a CEQA error is set forth in
section 21168.9, subdivisions (a) and (b).10 “CEQA, through the Public Resources Code,
10 Section 21168.9, subdivision (a) provides in part: “If a court finds, as a result
of a trial, hearing, or remand from an appellate court, that any determination, finding, or
decision of a public agency has been made without compliance with this division, the
court shall enter an order that includes one or more of the following: [¶] (1) A mandate
that the determination, finding, or decision be voided by the public agency, in whole or in
part. [¶] . . . [¶] (3) A mandate that the public agency take specific action as may be
necessary to bring the determination, finding, or decision into compliance with this
division.”
Section 21168.9, subdivision (b) provides: “Any order pursuant to subdivision (a)
shall include only those mandates which are necessary to achieve compliance with this
division and only those specific project activities in noncompliance with this division.
The order shall be made by the issuance of a peremptory writ of mandate specifying what
action by the public agency is necessary to comply with this division. However, the
order shall be limited to that portion of a determination, finding, or decision or the
specific project activity or activities found to be in noncompliance only if a court finds
that (1) the portion or specific project activity or activities are severable, (2) severance
will not prejudice complete and full compliance with this division, and (3) the court has
not found the remainder of the project to be in noncompliance with this division.”
26
allows a trial court to leave project approvals in place. After a court finds a CEQA error,
the court has three options: void a decision in whole or part; suspend certain project
activities; or take other specified actions. ([§] 21168.9, subd. (a).) CEQA does not
require the court, on finding CEQA error, to void all project approvals. The plain
language of section 21168.9 grants the trial court the discretion to leave project approvals
in place. [Citations.]” (Central Delta Water Agency v. Department of Water Resources
(2021) 69 Cal.App.5th 170, 205 (Central Delta Water Agency).)
In other words, “ ‘[s]ection 21168.9 was enacted in 1984 to give the trial courts
some flexibility in tailoring a remedy to fit a specific CEQA violation.’ [Citation.]”
(Center for Biological Diversity v. Department of Fish & Wildlife (2017) 17 Cal.App.5th
1245, 1253.) Accordingly, “ ‘section 21168.9 . . . “expressly authorizes the court to
fashion a remedy that permits some part of the project to go forward while an agency
seeks to remedy its CEQA violations.” ’ [Citation.].” (Id. at p. 1255.) “We review the
trial court’s exercise of its equitable powers [under section 21168.9] for abuse of
discretion.” (Preserve Wild Santee v. City of Santee (2012) 210 Cal.App 4th 260, 287;
see Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47
Cal.3d 376, 423 [applying traditional equitable principles in deciding whether injunctive
relief is an appropriate remedy under section 21168.9].)
In this case, the trial court ruling that the Regents had violated CEQA by
improperly rejecting the alternatives to the SHW project as economically infeasible on
the basis of a non-public cost analysis that was delegated to a three-member committee.
The merits of that ruling are not at issue in this appeal. The trial court therefore ordered
that a peremptory writ issue directing the Board of Regents as a whole to correct the
CEQA error by reconsidering the Regents’ approvals of the SHW project and the
feasibility of the project alternatives, and stayed all SHW project activities until the
Regents complied with the peremptory writ. East Meadow Action Committee has not
met its burden to show that the trial court abused its discretion in limiting the scope of the
27
peremptory writ to a correction of the sole CEQA error found by the court and staying
SHW project activities until the error is corrected. As we have discussed, the trial court
has the discretion under the plain language of section 21168.9 to leave project approvals
in place after finding a CEQA error. (See Central Delta Water Agency, supra, 69
Cal.App.5th at p. 204.)
For these reasons, we find no merit in East Meadow Action Committee’s
contention that the trial court erred in limiting the scope of the peremptory writ. Having
concluded that East Meadow Action Committee’s other contentions on appeal also lack
merit, we will affirm the judgment.
IV. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
28
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
WILSON, J.
East Meadow Action Committee v. Regents of the University of California
H048695