On November 30, 2015, following a grant and retransfer from the California Supreme Court and reconsideration in light of City of San Diego v. Board of Trustees of California State University (2015) 61 Cal.4th 945, the First District Court of Appeal (Division 3) reissued in slightly modified form its decision in City of Hayward v. Board of Trustees of the California State University (1st Dist., Div. 3 2015) 242 Cal.App.4th 833. The partially published opinion reaches essentially the same result, with the same reasoning, as did the Court of Appeal’s initial opinion, which was certified for publication on June 26, 2012. For the case’s facts, procedural history, holdings, and (in my view) most significant analyses, the reader should consult my prior post. (See, “First District Reaffirms CEQA Is Concerned With Physical Impacts On The Environment, Not Economic Ones On Government Services,” by Arthur F. Coon, posted on July 12, 2012.) 

The modified opinion differs from the original only in its Section 3.c., which deals with the University’s duty under CEQA to seek funds to satisfy its acknowledged approximately $2 million “fair share” traffic impact mitigation obligation. The Court of Appeal notes that in the above-cited City of San Diego decision, “the Supreme Court rejected the Trustees” argument that a state agency may contribute funds for off-site environmental mitigations only through earmarked appropriations, to the exclusion of other available sources of funding.” Per the Court of Appeal: “Given the increased clarity provided by the City of San Diego decision, we affirm the trial court’s judgment insofar as it requires reconsideration of the feasibility of funding the University’s fair-share contribution as a mitigation measure. [fn. omitted.]   Although the issue was not fully presented when the adequacy of the EIR was before the Trustees, in view of the clarification provided by City of San Diego and the scope and public importance of the project in question, it is appropriate for the Trustees to heed the Supreme Court’s guidance with respect to this project, especially since the matter must in all events be remanded for further consideration of the parkland issue discussed, infra.”


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