Subject:             California State University Cannot Avoid Paying for Mitigation Measures
Necessitated by Campus Expansion by Asserting the Lack of a Legislative Appropriation.

By:                     Keith F. Collins, Deputy City Attorney

Date:                  August 18, 2015


On August 3, 2015, the California Supreme Court rejected the California State University’s (“CSU”) attempt to avoid paying for the cost of mitigating traffic impacts caused by expansion of the San Diego campus. In City of San Diego v.  Board of Trustees of the California State University, 2015 Cal. LEXIS 5291 (Cal. Aug. 3, 2015), the CSU unsuccessfully argued that it could not lawfully pay to mitigate the off-campus environmental effects of its projects unless the Legislature makes an appropriation for that specific purpose. The case represents a victory for cities and their rights under the California Environmental Quality Act (“CEQA”) when state agencies within their jurisdictions undertake expansion projects



In 2003, the Board of Trustees of the CSU undertook a plan to accommodate a projected long-term increase in enrollment that included over 10,000 additional students at the San Diego campus.  In 2007, the CSU proposed to undertake several large construction projects at the San Diego campus, including student and faculty housing, research facilities, a parking structure, a hotel, a conference center, recreational facilities and retail services. The environment impact report (“EIR”) prepared by the CSU in connection with the San Diego Campus expansion acknowledged that it would contribute significantly to cumulative traffic congestion off-campus within the City of San Diego (the “City”) that could be mitigated by improving 15 intersections and eight street segments. The cost of these mitigation measures totaled approximately $15 million, but the CSU declined to contribute this amount absent a specific Legislative appropriation for this purpose.

In late 2007, the Board of Trustees (“Board”) certified the EIR, finding that the traffic impacts within the City cannot feasibly be mitigated based on the CSU’s interpretation of language from City of Marina v. Board of Trustees of California State University, 39 Cal. 4th 341 (2006). That opinion included the language “a state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” Thus, the CSU took the position that because the Legislature did not allocate $15 million to mitigate the effects of the expansion, the increased traffic congestion could not feasibly be mitigated. The CSU determined that the traffic congestion was acceptable because the project offers overriding benefits that justify the unmitigated impacts, including satisfying statewide educational demand, improving educational opportunities for underrepresented populations, creating jobs and fueling economic growth. The City brought an action to set aside the Board’s certification of the EIR, but the trial court denied the City’s petition. The City appealed, and the Court of Appeal ordered the Board to vacate its certification of the EIR. The California Supreme Court affirmed, finding that the Board’s interpretation of theCity of Marina language was incorrect and therefore invalidated its approval of the EIR.

The Court’s Decision

Clarifying that the City of San Marina language was not a holding in that case, the California Supreme Court held that the Board’s erroneous reliance on this language “constitutes a failure to proceed in a manner required by law” and thus the EIR must be set aside. The Court reasoned that neither CEQA, nor the City of Marina decision, prohibits mitigation costs from being properly included in funds already appropriated for a project. Moreover, many aspects of the San Diego campus expansion were funded using non-appropriated sources like student fees and bonds. The CSU’s position, if correct, would condition the duty to mitigate environmental effects upon the grant of an earmarked appropriation. This is inconsistent with CEQA that provides, as a general rule, that “each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out…whenever it is feasible to do so.” Furthermore, CEQA draws no distinction upon the environmental impacts of a project between effects that occur onsite and offsite, and the EIR itself included funding several on-campus mitigation measures including noise barriers, erosion prevention, and preservation of native plant habitats.
The Supreme Court also rejected the CSU’s position because it would improperly transfer the costs of mitigation to local government agencies, agencies like cities that are prohibited by the Mitigation Fee Act and the California Constitution from recovering mitigation fees that are not reasonably related and roughly proportional to the project’s impacts.


While basing its decision largely on the purpose and policy of CEQA, the Court did expressly recognized a city’s right to not bear the cost of mitigating the impacts of another agency’s expansion within its jurisdiction. This decision strengthens a city’s position with respect to its participation in the CEQA process of another lead agency where the project will impact the city’s infrastructure or resources.

Should you have any questions or require further clarification of the above, please contact Keith F. Collins at (714) 446-1400 or kfc@jones-mayer.com.