SAVE BERKELEY‘S NEIGHBORHOODS, Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.
A157551 (Alameda County Super. Ct. No. RG18-902751)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Filed 6/25/20
This case requires us to consider public universities’ obligations to analyze student enrollment increases under the California Environmental Quality Act (
the Legislature intends that the University of California “sufficiently mitigate significant off-campus impacts related to campus growth and development.” (Ibid.)
The University of California is required periodically to develop a comprehensive, long-range development plan (development plan) to guide development for each campus, based on the academic goals and projected enrollment for that campus. (
At issue here is a 2005 EIR that analyzes a development plan and projected enrollment increases for the U.C. Berkeley campus. Save Berkeley‘s Neighborhoods (Save Berkeley) alleges the Regents of the University of California, the President of the University of California, Janet Napolitano, and the Chancellor of the University of California, Berkeley,
BACKGROUND
A.
Save Berkeley is a California nonprofit formed to improve Berkeley‘s quality of life and protect its environment. The Regents of the University of California (Regents) are the governing body of the University of California (U.C.) and serve as the CEQA lead agency with responsibility for preparing and certifying EIRs.
In 2005, the Regents adopted a development plan to guide the U.C. Berkeley campus through 2020 and certified a “program EIR” for the development plan (2005 EIR). (See
Save Berkeley alleges that, beginning in 2007, respondents made a series of discretionary decisions to increase enrollment well beyond the projection analyzed in the 2005 EIR. Save Berkeley alleges respondents have continued to approve increases, without formal decisions, public notice, or further environmental review, in every two-semester period since 2007. By April 2018, U.C. Berkeley‘s actual student enrollment had grown by a total of approximately 8,300 students—a five-fold increase over the 2005 projection.
In 2018, Save Berkeley filed a petition for writ of mandate (
In its operative (third amended) petition, Save Berkeley alleges as follows. When respondents prepared the 2005 EIR for the development plan, the projected increase of 1,650 students was part of the “project description,” as that term is used in CEQA.3 (See
Save Berkeley also alleges it learned of the decisions to increase enrollment (above the 1,650 projection) on October 30, 2017 and that it could not have discovered the decisions earlier through the exercise of reasonable diligence. Save Berkeley asks the court to compel respondents to prepare and certify an EIR. In its derivative request for declaratory relief, Save Berkeley seeks a judicial declaration that respondents’ policy of increasing student enrollment without environmental review violates CEQA.
C.
Respondents demurred, contending Save Berkeley cannot state a cause of action for violation of CEQA because, under
The trial court sustained the demurrer without leave to amend, concluding Save Berkeley‘s petition was barred by the statute of limitations “[t]o the extent [it] challenges the adequacy of the 2005 EIR” and that “‘informal, discretionary decisions’ to increase student enrollment beyond that anticipated in the [development plan]” did not constitute “project changes” necessitating CEQA review. The court reasoned: “The [development plan], as statutorily defined, is not a student enrollment plan. Rather, it is ‘a physical development and land use plan’ for a campus of public higher education. (See
DISCUSSION
Save Berkeley argues: (1) it stated a cause of action for violation of CEQA by alleging respondents substantially increased enrollment without analyzing the environmental impacts of those decisions; (2) the trial court‘s construction of
A.
1.
“In reviewing the sufficiency of a complaint against a general demurrer, this court treats the demurrer as admitting all material facts properly pleaded,
We review the trial court‘s interpretation of CEQA de novo, keeping in mind the Legislature‘s requirement “‘to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.‘” (Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1184.) We also give “‘great weight‘” to the Secretary for Natural Resources’ interpretation of CEQA in the Guidelines. (Id., at p. 1184.)
2.
When a public agency proposes to undertake an activity potentially within CEQA‘s scope, CEQA prescribes a three-step process. (
The EIR is the “heart of CEQA.” (
Once an EIR is certified and the limitations period has passed, the EIR is conclusively presumed to comply with CEQA regardless of any flaws. (
The first concept is tiering. The 2005 EIR is a program EIR, which is a type of EIR that agencies often use to examine a broad program or plan that will be followed by more narrow, related projects, which can be analyzed in more focused CEQA documents that “tier” from the program EIR. (See generally,
The second concept concerns situations where the agency proposes changing the original project. If the changes would require major revisions to the prior EIR, the agency must prepare either a subsequent or supplemental EIR, depending on the magnitude of the necessary revisions. (
3.
Setting aside
Save Berkeley alleges that the “project” (
Accepting these allegations as true, as we must, Save Berkeley has adequately pled that respondents made substantial changes to the original project that trigger the need for a subsequent or supplemental EIR. (
B.
Respondents’ main argument is that
1.
(a) For purposes of this section, the following definitions apply:
[¶]
(2) “Long
range development plan” means a physical development and land use plan to meet academic and institutional objectives for a particular campus or medical center of public higher education. (b) The selection of a location for a particular campus and the approval of a long range development plan are subject to [CEQA] and require preparation of an environmental impact report. Environmental effects relating to changes in enrollment levels shall be considered for each campus or medical center of public higher education in the environmental impact report prepared for the long range development plan for the campus or medical center.
(c) The approval of a project on a particular campus or medical center of public higher education is subject to [CEQA] and may be addressed, subject to other provisions of [CEQA], in a tiered environmental analysis based upon a long range development plan environmental impact report.
(d) Compliance with this section satisfies the obligations of public higher education pursuant to [CEQA] to consider the environmental impact of academic and enrollment plans as they affect campuses or medical centers, provided that any such plans shall become effective . . . only after the environmental effects of those plans have been analyzed as required by [CEQA] in a long range development plan environmental impact report or tiered analysis based upon that environmental impact report . . ., and addressed as required by [CEQA].
Respondents’ rather confusing interpretation of this statute hinges largely on the definition of “long range development plan” in section
Second, the statute does not say that enrollment changes need only be analyzed in an EIR for a development plan or physical development. When a university prepares an EIR for a development plan,
This
Third, and finally, our construction of
2.
For all the above reasons, we agree with Save Berkeley that the plain language of
The California Natural Resources Agency‘s Enrolled Bill Report explains that the University of California supported enactment of
Sess.) as amended Aug. 21, 1989, pp. 1-2.) The statute‘s language reflects this legislative intent, repeatedly framing the universities’ obligations in terms of a “campus” (
The legislative history is completely at odds with respondents’ interpretation.
We reject respondents’ arguments that applying ordinary CEQA principles to enrollment increases would require annual CEQA review of enrollment levels, would turn enrollment projections into an enrollment cap, and would interfere with the Regents’ authority over public higher education.
First, respondents have options to avoid annual CEQA review. For example, they could analyze a range of enrollment levels in a program EIR, based on reasonable estimates for high and low scenarios, giving them CEQA coverage for year-to-year variability and for increases within the range. Agencies routinely use program EIRs to avoid preparing multiple EIRs for a series of actions. (See generally, Kostka & Zischke, Practice Under the California Environmental Quality Act (CEB 2019), §§ 10.13-10.21.)
Second, our decision in no way caps enrollment at the University of California or obstructs the Regents’ authority. We are merely requiring the Regents to comply with CEQA. “[W]hile education may be [the University of California‘s] core function, to avoid or mitigate the environmental effects of its projects is also one of [its] functions.” (City of Marina, supra, 39 Cal.4th at p. 360;
The trial court erred in sustaining the demurrer without leave to amend as to both claims for relief (mandamus and declaratory relief).
C.
As an alternative basis for affirming the judgment, respondents argue that the petition, initially filed on April 27, 2018, is untimely. They contend Save Berkeley‘s challenge is barred because more than 180 days have passed since the “commencement of the project” (
For a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) When the cause of action might be, but is not necessarily, time-barred, the demurrer must be overruled. (Ibid.)
Respondents are correct that Save Berkeley appears to challenge a series of decisions made in 2007 and thereafter. However, at the demurrer stage, we cannot resolve the factual issues underlying respondents’ statute of limitations defense. Save Berkeley has alleged it lacked actual or constructive notice of the enrollment increases before October 30, 2017, an allegation we must accept as true on demurrer. Accordingly, Save Berkeley has alleged sufficient facts to survive demurrer. (See Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 939, italics added [“if the agency makes substantial changes in a project after the filing of the EIR and fails to file a later EIR in violation of
D.
We also reject respondents’ arguments that Save Berkeley‘s petition is moot. “[A] case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.” (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454.) Respondents’ arguments are spurious.
First, respondents claim that they reviewed the enrollment increases recently in the Goldman School EIR, and thus they have already done “exactly what [Save Berkeley] asks.” The Goldman School EIR is not before us. Respondents cite nothing in the record to demonstrate that it properly analyzed the increases. They forfeit the argument. (Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 877-878.)
Second, respondents claim that they cannot analyze or mitigate the enrollment levels of past classes because those classes have “long since departed U.C. Berkeley” and “no longer exist.” But Save Berkeley is asking respondents to mitigate the past and ongoing impacts of their decisions to increase enrollment levels. Respondents do not suggest that enrollment has fallen to the levels projected in 2005, nor do they explain why they can no longer mitigate the impacts of the higher levels. (See Save Our Schools v. Barstow Unified School Dist. Bd. of Education (2015) 240 Cal.App.4th 128, 145 [decision to close schools did not moot CEQA challenge because school district could reverse or mitigate the decision].)
We need not reach the parties’ additional CEQA arguments.5
E.
Finally, Save Berkeley argues the trial court abused its discretion in denying its motion to compel discovery. Save Berkeley has not met its burden, as the appellant, to show error.
1.
Save Berkeley elected to prepare the record of proceedings, pursuant to
We also deny amicus curiae City of Berkeley‘s request for judicial notice. (See Professional Engineers in California Government v. Kempton (2007) 40 Cal.4th 1016, 1047, fn. 12 [” ‘an amicus curiae accepts the case as he finds it and may not “launch out upon a juridical expedition of its own unrelated to the actual appellate record” ’ “]; Ketchum v. Moses, supra, 24 Cal.4th at p. 1135, fn. 1.)
2.
Save Berkeley concedes it may no longer challenge the 2005 EIR. Nonetheless, it makes no attempt to explain why its document requests one through four, which seek documents prepared in or before 2005, are not overbroad. Save Berkeley also does not justify the breadth of requests five and six as currently written. Despite alleging respondents made informal decisions to increase enrollment starting in 2007, requests five and six seek all documents relating to enrollment increases prepared after adoption of the 2020 development plan (in 2005) or certification of the 2005 EIR. Further, Save Berkeley has not limited the scope of these requests in any other way—such as by requesting documents prepared in connection with any particular decision or document.
An order challenged on appeal is presumed to be correct, and it is the appellant‘s burden to demonstrate error. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) With respect to the discovery order, Save Berkeley has not done so.
DISPOSITION
The judgment is reversed. The action is remanded with directions that the trial court vacate its order sustaining the demurrer and issue a new order overruling the demurrer. Save Berkeley is awarded its costs on appeal.
BURNS, J.
We concur:
SIMONS, ACTING P.J.
NEEDHAM, J.
Alameda County Superior Court, Case No. RG18902751, Hon. Frank Roesch and Hon. Noël Wise
Law Offices of Thomas N. Lippe, APC, Thomas N. Lippe, for Plaintiff and Appellant.
The University of California Office of General Counsel, Charles F. Robinson and Alison Krumbein; Meyers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni, Timothy D. Cremin and Edward Grutzmacher, for Defendants and Respondents.