Save Westwood Village v. The Regents of the University of California CA2/4

Filed 12/22/15 Save Westwood Village v. The Regents of the University of California CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
SAVE WESTWOOD VILLAGE, B261203
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS139854)
v.
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court for Los Angeles County,
Thomas I. McKnew, Jr., Judge. Affirmed.
Law Offices of Noel Weiss and Noel W. Weiss for Plaintiff and Appellant.
Meyers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni, Julia L. Bond
and Shiraz D. Tangri for Defendant and Respondent.
This case involves the approval by the Regents of the University of
California (the Regents) of the proposed Meyer and Renee Luskin Conference and
Guest Center (the Project) on the campus of the University of California, Los
Angeles (UCLA). Appellant Save Westwood Village (Save Westwood) appeals
from a judgment denying its petition for writ of mandate challenging that approval
under the California Environmental Quality Act (CEQA) (Pub. Resources Code,
§ 21000 et seq.).1 The appeal raises four issues: (1) whether the Regents violated
CEQA by committing to the Project before completing the CEQA process;
(2) whether the Regents violated CEQA by appropriating funds for a project that
was different than the Project evaluated under CEQA; (3) whether the Project
approved by the Regents violates the CEQA requirement that only legally feasible
alternatives be considered, on the ground that the Project violates the Regents’
policies regarding lawful “auxiliary enterprises”; and (4) whether the
environmental impact report (the EIR) adequately addressed parking impacts from
the Project.
We could have rejected Save Westwood’s appellant’s opening brief at the
outset for its many inadequacies. (Cal. Rules of Court, rule 8.204(e)(2)(B).) First,
it fails to provide an adequate statement of facts. (Cal. Rules of Court, rule
8.204(a)(2)(C).) Although there is a one and a half page section entitled
“Statement of Facts,” it is more argument than recitation of facts. Nowhere in the
brief is there a coherent discussion of the facts leading to the Regents’ approval of
the Project and the trial court’s denial of Save Westwood’s writ petition. Second,
the appellant’s opening brief fails to provide citations to the record for most of its
factual assertions (and, when it does provide record citations, many of those
1
Further undesignated statutory references are to the Public Resources Code.
2
citations do not, in fact, support the “fact” for which the citation was provided).
(Cal. Rules of Court, rule 8.204(a)(1)(C).) Finally, the brief contains virtually no
legal analysis supported by citation to legal authority. While it does cite to four
cases, it does not discuss the reasoning (or even holdings) of those cases, or
attempt to apply the reasoning or holdings to the facts of this case. (Cal. Rules of
Court, rule 8.204(a)(1)(B).) Despite these infirmities, for which we could deem
Save Westwood’s arguments to have been forfeited or abandoned (Duarte v. Chino
Community Hospital (1999) 72 Cal. App. 4th 849, 856 [argument deemed waived
for failure to support argument with citations to record]; Landry v. Berryessa
Union School Dist. (1995) 39 Cal. App. 4th 691, 699-700 [issue that is not
supported by pertinent or cognizable legal argument may be deemed abandoned]),
we have considered those arguments and found them lacking on the merits.
Accordingly, we affirm the judgment.
BACKGROUND
In 2008, UCLA convened a group of deans, staff, and administrators to
assess the feasibility of a conference center on or near the UCLA campus. The
group explored a variety of alternatives to provide the facilities needed to host
national and international conferences, consistent with UCLA’s desire to become a
global leader in education and research. Those alternatives included using or
expanding existing facilities on and off campus, including nearby hotels, and
constructing a new conference facility at various locations on campus. While those
alternatives were being explored, UCLA retained an experienced hotel and
conference center consultant, Pannell Kerr Forster (PKF), in 2009 to assess local
and regional conference and lodging markets and demand for academic meetings
and events, and to review and augment UCLA’s occupancy and operating
projections. Based upon PKF’s findings, which were updated in 2011, UCLA
3
concluded that it could support a full-service conference center with approximately
250 rooms and 25,000 square feet of meeting space for academic travelers, visiting
faculty, and other university-affiliated business.
In December 2010, UCLA alumni Meyer and Renee Luskin pledged a gift of
$50 million to help construct ($40 million) and endow ($10 million) an academic
conference center on the UCLA campus. UCLA evaluated four campus locations
based upon criteria that included centrality of location, impacts to adjacent uses,
site acquisition costs, and room affordability, as well as support from faculty and
response from the community. The most viable site was found to be the site of
Parking Structure 6 (PS 6), which is adjacent to the main entrance to the campus.
To start the planning process for the Luskin conference center, UCLA
prepared a project planning guide (PPG) in 2011. The PPG stated that the Project
“would consist of four components: 1) a 242,000 gsf [i.e., gross square foot]
conference facility with 25,000 asf [i.e., assignable square foot] of meeting space
and 250 guest rooms; 2) a 42,000 gsf parking garage for resident guests; 3) a
10,000 gsf campus catering kitchen to replace an older facility in the northwest
campus; and 4) improvements to the adjacent traffic turnabout and pedestrian plaza
in Gateway Plaza at the main entrance to campus.” The PPG also included draft
floor plans of each floor, including the subterranean level for parking. It concluded
that an EIR needed to be prepared for the Project.
Because the square footage for the Project fell within the remaining
development allocation of UCLA’s long range development plan, for which the
Regents had certified an EIR in March 2009, the EIR for the Project was tiered
from the long range development plan EIR. In accordance with CEQA, UCLA
prepared a “tiered initial study” to identify environmental issues or impacts from
the Project that were not fully addressed in the long range development plan EIR
and thus would require additional Project-level impact analysis. The initial study
4
and notice of preparation were distributed to government agencies and interested
parties in November 2011, and a public information and EIR scoping meeting was
held.2 Save Westwood submitted written comments on the initial study.
UCLA issued the draft EIR in May 2012. The executive summary of the
draft EIR provided the following Project description: “The proposed Project
involves the development of the new 8-level (7 levels above grade), 255,000-gross-
square-foot (gsf) Conference and Guest Center on the site of the existing 5-level (1
subterranean level) Parking Structure 6 (approximately 2.7 acres), which would be
demolished as part of the Project. The Project would include up to 260 guest
rooms; conference and meeting rooms; dining facilities with indoor and outdoor
seating; lobby and lounge areas; support functions; and administrative space. . . .
[¶] A 1-level subterranean parking garage with up to 130 parking spaces would be
provided that would also accommodate a loading dock. . . . [¶] The Project would
relocate the existing UCLA catering kitchen currently at the Bradley International
Center in the Northwest zone of campus to the subterranean level of the
Conference and Guest Center. The new catering kitchen would be approximately
10,000 gsf. The Project would also include site improvements to the Westwood
Plaza terminus (approximately 1.4 acres).”
The Project description was expanded upon in section 3.0 of the draft EIR.
In that section, the draft EIR provided: “The proposed Conference and Guest
2
The notice of preparation described the Project as follows: “The University of
California, Los Angeles (UCLA) proposes the development of a 255,000-gross-square-
foot (gsf) project (‘the Project’) on the site of the existing Parking Structure 6 (to be
demolished). The new Meyer and Renee Luskin Conference and Guest Center would
include conference/meeting space and associated support facilities, guest rooms and
amenities, service and support facilities, a loading dock, and one-level of subterranean
parking. The Project would also include the relocation of the existing UCLA catering
kitchen (approximately 10,000 gsf) and site improvements at the Westwood Plaza
terminus.”
5
Center building would include conference and meeting space; dining facilities with
indoor and outdoor seating; a reception area; lobby and lounge areas; support
functions and administrative space on the first two aboveground levels (refer to
Figures 3-4 and 3-5). Parking, the loading dock, and the catering kitchen would be
located at the subterranean level to separate these uses from the operations of the
conference center (refer to Figure 3-6). . . . [¶] Up to 260 guest rooms would be
provided on levels 3 through 7; a conceptual floor plan for the guest room levels is
provided in Figure 3-7. . . . [¶] In total, the conference and meeting rooms, guest
services, service and support, and guest rooms comprise approximately 245,000
gsf of new development.” The floor plans set forth in Figures 3-4 through 3-7 are
virtually identical to the floor plans included in the earlier issued PPG. The draft
EIR explained that the Conference and Guest Center would be open year-round,
and the conference space and guest rooms would be for use by UCLA conferees
and University Affiliates only, and would not be available for commercial use. It
provided that “University Affiliates are non-conference guests such as visiting
scholars, faculty, and staff from other institutions or UC campuses and offices;
international visitors and dignitaries; parents of current and prospective students;
patients or families of patients; attendees of athletic, cultural, or performance
events; Alumni; Emeriti; donors; administrators; and professionals doing business
with or on behalf of UCLA.”
The project description section of the draft EIR also addressed the effect of
demolition of PS 6 on parking availability on campus. It noted that PS 6 currently
has 654 permit holder parking spaces and 100 pay station spaces. As part of the
proposed Project, the 100 pay station spaces would be eliminated, and the 654
permit holder spaces would be reassigned to currently unassigned spaces within the
existing parking inventory, which has 1,235 unassigned parking spaces. The draft
EIR also noted that the proposed Project is projected to require approximately 397
6
additional parking spaces to accommodate non-overnight Conference and Guest
Center guests, as well as 90 spaces for full-time employees. It determined that
those additional spaces would be reassigned from the remaining unassigned
parking inventory. Finally, the draft EIR noted that the parking spaces on the
subterranean level of the Conference and Guest Center would be dedicated to
overnight guests.
The draft EIR analyzed potential environmental impacts from the proposed
Project, as well as three alternatives. Those alternatives were (1) no project/no
build; (2) an alternative campus location at parking lot 36 in the southwest zone of
the campus; and (3) a reduced density option, which eliminated the guest room
component.3 It concluded that the no project/no build would avoid any significant
environmental impacts, but it would not attain any of the Project objectives. The
alternative campus location would have impacts similar to or greater than the
proposed Project, and it would not meet several of the Project objectives, including
having a centrally located facility and providing a replacement catering kitchen.
The reduced density alternative was the environmentally superior alternative, as it
would have impacts similar to or fewer than the proposed Project, but it would not
meet some important Project objectives, including (1) providing a facility that
enables UCLA to host multi-day conferences and events with overnight
accommodations that would minimize travel time for conferees and allow more
time for informal contact between conference participants throughout the duration
of their stay; and (2) providing a conference center with overnight
accommodations that would enable the facility to be a self-supporting auxiliary
enterprise.
3
The draft EIR also explained that UCLA had considered an alternative off-campus
site, but rejected it because it would not meet most of the Project objectives.
7
The draft EIR was circulated for public review and comment, and UCLA
held a public hearing to receive verbal comments. A representative from Save
Westwood attended the public hearing and provided comments. In addition, Save
Westwood submitted a detailed comment letter, with exhibits, and Save
Westwood’s counsel submitted a separate comment letter.
UCLA provided detailed responses to Save Westwood’s comments (as well
as comments received from other sources) in the final EIR, which was issued in
September 2012. The final EIR also made a few modifications to the draft EIR
(including modifying the definition of “University Affiliates”)4 and described the
proposed mitigation monitoring and reporting program. It also attached various
documents as exhibits, including the PPG (which was approved in March 2012).
While the CEQA process was ongoing, UCLA also evaluated the proposed
budget for the Project. In January 2012, it prepared a “Business Case Analysis”
that summarized the Project and the development process, and provided a financial
evaluation of the Project at four locations on campus. It concluded that the PS 6
site was the most viable and cost-effective location for the proposed Project. The
analysis was attached as an exhibit to the final EIR.
In March 2012, the Regents’ Committee on Grounds and Buildings (the
Committee) held a public meeting on the amendment of the budget and approval of
external financing and standby financing for the Project. An “Action Item”5
4
As modified, that definition provides: “University Affiliates are non-conference
guests such as visiting scholars, faculty, and staff from other institutions or UC campuses
and offices; international visitors and dignitaries; families of current and prospective
students; patients or families of patients; Alumni; Emeriti; donors; administrators; and
professionals doing business with or on behalf of UCLA. The Conference and Guest
Center can be used at any time by a University Affiliate including if they are attending
athletic, cultural, or performance events on campus.”
5
The Action Item was attached as an exhibit to the final EIR.
8
distributed in advance of the meeting described the Project as a 294,000 gsf project
consisting of (1) a 242,000 gsf conference facility with 25,000 asf of meeting space
and 250 guest rooms; (2) a 42,000 gsf parking garage with 125 spaces for resident
guests; (3) a 10,000 gsf operationally independent campus catering kitchen; and
(4) improvements to the adjacent traffic turnabout and pedestrian areas in Gateway
Plaza at the main entrance to campus. The action item explained that “[t]he
Regents are being asked to: 1) approve the project budget of $162,425,000, to be
funded from external financing ($112,000,000), gift funds ($40,000,000), housing
reserves ($7,225,000), and campus funds ($3,200,000); 2) approve external
financing ($112,000,000); and 3) approve standby financing ($35,000,000).”
Apparently, the Committee did not approve the budget or external financing
at that time, and instead held another meeting in July 2012 to consider those items.
The action item distributed in advance of that meeting provided the same
description of the Project as the description in the March 2012 action item, except
that it described the square footage of conference facilities in gross square feet
rather than assignable square feet (70,000 gsf vs. 25,000 asf). The Committee
approved the budget and approved the external financing at that meeting.
In September 2012, the Committee held another meeting in which it certified
the final EIR, adopted CEQA findings for the Project, amended the UCLA long
range development plan to transfer square footage from the Bridge and Southwest
zones to the Central zone, and approved the Project design. The Project
description in the action item for the meeting was the same as the description for
the July 2012 meeting, i.e., a 294,000 gsf Project consisting of a 242,000 gsf
conference center with 70,000 gsf of conference facilities and 250 guest rooms, a
42,000 gsf parking garage with 125 parking spaces, a 10,000 catering kitchen, and
improvements to the adjacent traffic turnabout and pedestrian areas.
9
Save Westwood filed a petition for writ of mandate and declaratory relief in
the trial court in October 2012. Following a series of demurrers and motions to
strike, the operative petition alleges a single cause of action alleging that the
Regents violated CEQA by approving the Project. Following an extended hearing,
the trial court denied Save Westwood’s petition and entered judgment in favor of
the Regents. Save Westwood timely filed a notice of appeal from the judgment.
DISCUSSION
Save Westwood contends the Regents violated CEQA by: (1) improperly
pre-committing to the Project before completing the CEQA process;
(2) appropriating funds for a project that was different than the Project evaluated
under CEQA; (3) approving a Project that is not legally feasible because it violates
the Regents’ policies regarding lawful “auxiliary enterprises”; and (4) certifying an
EIR that does not adequately address parking impacts from the Project. None of
these contentions is persuasive.
A. Pre-Commitment to the Project
In the “Statement of the Case” section of its appellants’ opening brief, Save
Westwood asserts that the Luskins’ $40 million pledge constituted the “equity” for
the Project and was conditioned on the conference center and “hotel” being
constructed on the UCLA campus. It argues that a letter the Luskins sent to the
Chair of the Regents in July 2012 “foreclosed objective CEQA review of the
project by virtue of [the Luskins’] insistence that they would pull their equity
contribution to the project were [the] Regents to do anything other than approve
the project as the Luskins’ [sic] envisioned it; thereby resulting in [the] Regents[’]
de facto pre-commitment to favorable CEQA review of the project.” In its
discussion of the issue in the “Legal Argument” section of its opening brief, Save
10
Westwood argues that the trial court erred in finding that the Luskins’ letter does
not evidence pre-commitment to the Project. In addition, it argues that the
Regents’ approval of the budget for the Project without any qualification that the
budget approval was contingent on CEQA approval is further evidence of the
Regents’ pre-commitment. We disagree.
In Save Tara v. City of West Hollywood (2008) 45 Cal. 4th 116 (Save Tara),
the California Supreme Court addressed the circumstances under which an
agency’s actions should be considered a pre-commitment to approve a project
before the CEQA process is completed. The Court observed that CEQA requires
that an EIR be completed and certified before an agency approves a project that
may have a significant effect on the environment. (Id. at p. 128, citing §§ 21100,
21151.) It noted that “[t]he CEQA Guidelines define ‘approval’ as ‘the decision
by a public agency which commits the agency to a definite course of action in
regard to a project.’ (Cal. Code Regs., tit. 14, § 15352, subd. (a).) The problem is
to determine when an agency’s favoring of and assistance to a project ripens into a
‘commit[ment].’ To be consistent with CEQA’s purposes, the line must be drawn
neither so early that the burden of environmental review impedes the exploration
and formulation of potentially meritorious projects, nor so late that such review
loses its power to influence key public decisions about those projects.” (Save
Tara, supra, 45 Cal.4th at pp. 130-131.)
The Court rejected the creation of a bright-line rule defining when an
approval (or commitment) occurs, and instead referred to “the general principle
that before conducting CEQA review, agencies must not ‘take any action’ that
significantly furthers a project ‘in a manner that forecloses alternatives or
mitigation measures that would ordinarily be part of CEQA review of that public
project.’” (Save Tara, supra, 45 Cal.4th at p. 138.) The Court cautioned, however,
that “[a]pproval, within the meaning of sections 21100 and 21151, cannot be
11
equated with the agency’s mere interest in, or inclination to support, a project, no
matter how well defined. ‘If having high esteem for a project before preparing an
environmental impact report (EIR) nullifies the process, few public projects would
withstand judicial scrutiny, since it is inevitable that the agency proposing a project
will be favorably disposed toward it.’” (Id. at pp. 136-137.) The Court instructed
that courts should look “to the surrounding circumstances to determine whether, as
a practical matter, the agency has committed itself to the project as a whole or to
any particular features, so as to effectively preclude any alternatives or mitigation
measures that CEQA would otherwise require to be considered, including the
alternative of not going forward with the project.” (Id. at p. 139.) This
determination is “predominantly a legal question, which we answer independently
from the agency whose decision is under review.” (Id. at p. 131.)
With this framework in mind, we must determine whether UCLA’s
acceptance of the Luskins’ $40 million gift, coupled with the Luskins’ letter to the
Regents, and the Regents’ approval of the budget, are sufficient evidence to show
that the Regents committed itself to the Project in a way that effectively precluded
any alternatives or mitigation measures that CEQA would otherwise require to be
considered. We conclude that they are not.
First, the agreement through which the Luskins pledged, and the Regents
accepted, the $40 million gift contained no provisions that would preclude the
Regents from considering any alternatives or mitigation measures that CEQA
would otherwise require to be considered. The only commitments the Regents
made were to name the conference center “the Meyer and Renee Luskin
Residential Conference Center at UCLA,” to provide annual reports on the status
of the completion of the funding of the conference center, and to use the gift only
for charitable purposes. There was no commitment by the Regents to approve any
specific project at a specific location.
12
Second, the Luskins’ July 2012 letter does not evidence any commitment by
the Regents not to consider any alternatives or mitigation measures. While the
Luskins expressed strong support for the Project at the PS 6 location, they also
noted they had supported an earlier proposal to locate the conference center at the
UCLA Faculty Center. To the extent Save Westwood contends the Luskins’
statements in the letter that they would not have supported a proposal to build a
conference center at an off-campus location foreclosed the Regents from
considering alternatives, we disagree. As noted in the response to comments
received by UCLA after publication of the final EIR, a release from the Luskins’
pledged gift is allowed. Therefore, the Regents were not obligated to approve the
Project at the Luskins’ insistence; they could choose not to go forward at all, or to
go forward without the Luskins’ gift. In any event, the administrative record
demonstrates that, in fact, the Regents did consider several alternatives, both off-
campus and on-campus, as well as a “no build” alternative, as required by CEQA.
Finally, the Regents’ approval of the budget before certifying the final EIR
is not evidence that they improperly pre-committed to the Project in violation of
CEQA. This same argument was presented to and rejected by the appellate court
in California Oak Foundation v. Regents of University of California (2010) 188
Cal. App. 4th 227 (California Oak). In that case, the court noted that the Regents
“ha[ve] enacted the ‘Policy on Approval of Design, Long Range Development
Plans, and the Administration of [CEQA]’ (UC CEQA policy). This policy
dictates that approval of a project’s design, not approval of a project’s budget,
constitutes final ‘approval’ for purposes of CEQA. (UC CEQA policy, § 2.3.15
[‘Design approval has been determined to be the irrevocable commitment to
proceed with a project’]). . . . [C]onsistent with this policy, the University
prohibits the expenditure of any funds for construction of a capital project before
the project’s EIR is certified and its design is approved, but not expenditure of
13
funds for a project’s initial planning and feasibility studies. (University of Cal.,
Office of the President, Facilities Manual.)” (California Oak, supra, 188
Cal.App.4th at p. 287.)
The appellate court found that, since an agency’s own rules and regulations
determine the exact date of a project’s approval (Cal. Code Regs., tit. 14, § 15352,
subd. (a)), the Regents did not approve the project at issue until it approved the
project’s design, which was the same day the Regents certified the EIR. Therefore,
the court found that the Regents complied with section 21102, which provides that
a state agency may not authorize funds for expenditure for a project that may have
a significant effect on the environment unless the authorization is accompanied by
an EIR. The court determined that it could affirm the Regents’ approval of the
project, so long as the Regents’ consideration of the EIR “was reasonable and not
simply a ‘post hoc rationalization . . . to support action already taken.’ [Citation.]”
(California Oak, supra, 188 Cal.App.4th at p. 288.) The court concluded this
standard was met because the Regents’ approval of the project “followed a lengthy,
interactive planning and review process” in which “the Regents identified and
analyzed the project’s significant environmental impacts; identified and analyzed
alternatives and mitigation measures responsive to those impacts; actively solicited
public comments; held multiple public hearings; and considered and responded to
extensive public feedback.” (Id. at p. 288.)
In this case, as in California Oak, the Regents approved the design of the
Project on the same day it certified the EIR. The approval also followed the same
kind of lengthy, interactive planning and review process that was followed in that
case. There is no evidence that the Regents’ approval of the budget constricted in
any way its review of the impacts analysis, alternatives, or mitigation measures
presented in the EIR. In short, we conclude the Regents did not violate CEQA’s
14
command that an agency must complete and certify an EIR before approving a
project that may have a significant effect on the environment.
B. Different Project Descriptions
As noted, section 21102 provides that a state agency may not authorize
funds for expenditure for a project that may have a significant effect on the
environment unless the authorization is accompanied by an EIR. Save Westwood
contends the Regents violated this CEQA provision by authorizing the expenditure
of funds for a 294,000 gsf project accompanied by an EIR that reviewed only a
255,000 gsf project. Save Westwood is mistaken.
We acknowledge that when summarizing the Project, the EIR referred to it
as a “255,00-gross-square-foot (gsf) Conference and Guest Center.” But the EIR
provided a more detailed description of the Project that made clear that the 255,000
gsf total did not include the subterranean parking component of the Project. In that
more detailed description, the EIR stated that “[t]he proposed Conference and
Guest Center building would include conference and meeting space; dining
facilities with indoor and outdoor seating; a reception area; lobby and lounge areas;
support functions and administrative space on the first two aboveground levels,”
and that “[i]n total, the conference and meeting rooms, guest services, service and
support, and guest rooms comprise approximately 245,000 gsf of new
development.” The other components of the project – the parking and the catering
kitchen – are not included in that 245,000 gsf of new development.
The square footage of those other components can be found in the PPG,
which is attached as an exhibit to the final EIR. The PPG explained that, in
addition to the 242,000 gsf conference facility, the Project included a 42,000 gsf
parking garage and a 10,000 gsf catering kitchen – a total of 294,000 gsf, the same
sized Project for which the Regents authorized the expenditure of funds. And if
15
there were any doubt that the Project described in the PPG is the same Project
described in the EIR, one need only compare the floor plans included in each
document; they are virtually identical. In short, Save Westwood’s perceived
disparity does not exist.
C. Auxiliary Enterprise
Save Westwood’s next contention, as best we can discern, is as follows.
One of the “Project Objectives” set forth in the CEQA Findings is: “Develop a
conference center for academic and scholarly exchange and provide overnight
accommodations that become the economic engine that would enable the facility to
be a self-supporting auxiliary enterprise.” The University of California has a
policy, referred to as UCOP BUS-72, that provides: “It is the policy of the
University to operate, or to authorize groups affiliated with the University to
operate, auxiliary enterprises which support and enhance its instructional, research
and public service programs. Accordingly, auxiliary enterprises shall be conducted
primarily for the convenience of University students, faculty and staff, and may
only incidentally serve members of the general public.” The Project as approved
violates this policy because it will be a “commercial hotel” that will not
“primarily” serve students, faculty, and staff, since the trial court found “that 25%
of the commercial hotel will be used for non-academic purposes.” Under CEQA,
only legally feasible and economically feasible alternatives may be considered
when evaluating alternatives. (Citing Preservation Action Council v. City of San
Jose (2006) 141 Cal. App. 4th 1336 and Uphold Our Heritage v. Town of Woodside
(2007) 147 Cal. App. 4th 587.) Therefore, the Regents violated CEQA by
approving the Project because it is not legally feasible under the University’s
policy.
16
In its respondent’s brief, the Regents assert that (1) this argument is barred
because the trial court sustained the Regents’ demurrers to Save Westwood’s
“auxiliary enterprise” claims, and Save Westwood has not challenged this ruling
on appeal; (2) Save Westwood is misusing CEQA to challenge economic and
social concerns; (3) the “Topical Responses” in the final EIR provide substantial
evidence to rebut Save Westwood’s argument; and (4) courts should defer to the
Regents’ interpretation of its own auxiliary enterprise policy.
We conclude the Regents’ first two assertions misapprehend Save
Westwood’s argument as we understand it. First, Save Westwood’s argument on
appeal is not the same as the “auxiliary enterprise” claims that were dismissed on
demurrer. The claims that were subject to the Regents’ demurrers sought to
compel the Regents to perform its duties and direct that the conference center’s use
be limited to students, faculty, and staff of the University for academic or
educational purposes. The trial court sustained the demurrers on the ground that a
court may issue a writ of mandate only to compel the performance of a ministerial
duty, and the Regents’ alleged duties are not ministerial. Second, although Save
Westwood’s argument may indirectly attempt to address economic and/or social
concerns, the argument does pose a legal question under CEQA, albeit one that
relies upon questionable factual and legal assertions.
It is those questionable factual and legal assertions that doom Save
Westwood’s argument, as demonstrated in the Regents’ third and fourth assertions.
First, contrary to Save Westwood’s repeated assertion in its opening brief,
the trial court did not find “that 25% of the commercial hotel will be used for non-
academic purposes.” Rather, in addressing an argument related to a discussion of
tax issues, the trial court observed that the EIR noted that “[n]o Unrelated Business
Income Tax liability is anticipated because no more than 25% of projected visitors
17
are expected to be subject to UBIT, which only applies to room occupancy that is
unrelated to the University’s exempt education and research purposes.”
Second, Save Westwood’s assertion that use of the conference center by
anyone other than University students, faculty, or staff constitutes use by the
general public within the meaning of UCOP BUS-72 takes too narrow a view of
that policy. As the Regents assert in the respondent’s brief, there is substantial
evidence in the administrative record that the Regents have historically interpreted
UCOP BUS-72 to allow the use of auxiliary enterprises by “University Affiliates.”6
Specifically, the final EIR included a “Topical Response” that responded to
comments requesting clarification of categories of guests who would be allowed to
utilize the Project, and how the requirement of University affiliation relates to
UCLA’s mission. The Topical Response explained that existing UCLA guest
houses limit guests to those with University affiliation, i.e., “individuals having a
special relationship to UCLA or the University of California and its mission,
including visiting scholars, faculty, and staff from other institutions or UC
campuses and offices; international visitors and dignitaries; families of current and
prospective students; patients or families of patients; Alumni; Emeriti; donors;
administrators; and professionals doing business with or on behalf of UCLA.” It
noted that this same policy and practice would be extended to the proposed
conference center. It also explained that UCLA will not advertise the conference
center to the general public and will not accept bookings from widely available
6
As noted, the EIR stated that “[t]he conference space and guest rooms would be
for use by UCLA conferees and University Affiliates only,” and it defined “University
Affiliates” as “non-conference guests such as visiting scholars, faculty, and staff from
other institutions or UC campuses and offices; international visitors and dignitaries;
families of current and prospective students; patients or families of patients; Alumni;
Emeriti; donors; administrators; and professionals doing business with or on behalf of
UCLA.”
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online booking sites. It stated that advertising for the conference center will
clearly identify the restrictions on use of the center, and that the phone and online
reservation systems will require users to identify their University affiliation, which
they will be required to reconfirm at the time of check in. Thus, as the Regents
assert, the proposed operation of the conference center is consistent with UCOP
BUS-72, as historically interpreted by the Regents.
Finally, as the Regents assert, their interpretation of the University’s internal
regulatory matters is entitled to great deference. (Miklosy v. Regents of University
of California (2008) 44 Cal. 4th 876, 889-891 (Miklosy).) The California Supreme
Court has observed that article IX, section 9 of the California Constitution
“‘“grants the [R]egents broad powers to organize and govern the university.”’”
(Miklosy, supra, 44 Cal.4th at p. 889.) “‘The authority granted the Regents
includes “full powers of organization and government, subject only to such
legislative control as may be necessary to insure compliance with the terms of the
endowment of the University and the security of its funds.” [Citation.] Thus,
“[t]he Regents have been characterized as ‘a branch of the state itself’ [citation] or
‘a statewide administrative agency’ [citation]” [citation], and “[i]t is apparent that
the Regents as a constitutionally created arm of the state have virtual autonomy in
self-governance” [citation].’ [Citation.]” (Id. at pp. 899-890.) Given this
constitutional grant of autonomy to the Regents, we must defer to the Regents’
determination that UCOP BUS-72 allows use of the services of an auxiliary
enterprise by University Affiliates as defined in the final EIR. Therefore, Save
Westwood’s argument that the Project was not legally feasible is not supported by
the evidence.
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D. Parking Analysis in EIR
Save Westwood asserts that the EIR is inadequate because it “never fully
accounts for the environmental impact of the loss of 397 (net) [parking] spaces”
due to the demolition of PS 6 to accommodate the Project. This assertion is belied
by the record.7
As noted, the draft EIR explained that the 654 permit holder spaces that
would be lost would be reassigned to currently unassigned spaces within UCLA’s
existing parking inventory of 1,235 unassigned spaces, and that the projected
number of spaces needed to accommodate non-overnight guests or conference
attendees and full-time employees of the conference center also would be assigned
from the remaining parking inventory. In addition, the final EIR included more
detailed information in a “Topical Response” to questions raised about the impact
of the demolition of PS 6 on the availability of parking on campus.
7
Save Westwood’s argument on this issue in its appellant’s opening brief consists
of six sentences, plus a parenthetical reference to a “detailed argument” in a reply brief
filed with the trial court. We decline to consider any argument not set forth in the
appellant’s opening brief. (Paterno v. State of California (1999) 74 Cal. App. 4th 68, 109
[“An appellant cannot rely on incorporation of trial court papers, but must tender
arguments in the appellate briefs”].)
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DISPOSITION
The judgment is affirmed. The Regents shall recover their costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
COLLINS, J.
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