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ON REMAND, FIRST DISTRICT MODIFIES CITY OF HAYWARD OPINION TO REQUIRE FURTHER CONSIDERATION OF THE FEASIBILITY OF OFF-SITE MITIGATION


In its 2012 opinion, City of Hayward v. Board of Trustees of the California State University, 204 Cal.App.4th 446, the First District concluded that the EIR for an expansion of the California State University East Bay campus was adequate in all respects except for its analysis of parkland impacts.  While the opinion also discussed the Trustee’s claim that it was infeasible to provide mitigation payments for off-site traffic impacts without approval from the Legislature, the Court of Appeal concluded that the issue had been waived on appeal because it was not raised in the administrative proceedings or in the trial court. See previous blog post at:  http://www.thomaslaw.com/blog/newly-published-appellate-decision-holds-analysis-of-parkland-impacts-for-campus-master-plan-fails-to-comply-with-ceqa/

The California Supreme Court then granted review and held City of Hayward while it decided City of San Diego v. Board of Trustees of California State University (2015) 61 Cal.4th 945, a case which focused exclusively on whether the feasibility of off-site impact mitigation payments depended on legislative approval. After the City of San Diego opinion was issued holding that state agencies may not avoid their duty to mitigate the environmental effects of their projects because the Legislature has not earmarked funds specifically for “mitigation,” the Supreme Court remanded City of Hayward to the First District for reconsideration.

On remand, the appellate court’s analysis remains unchanged with the exception of section 3(c), which discusses the feasibility of mitigating the off-site traffic impacts. Despite repeating its earlier holding that the issue had been waived on appeal, the court directs the Trustees to consider the feasibility of funding the University’s fair-share contribution due to the “clarification provided by City of San Diego” and the “public importance of the question.”



dateDecember 1st, 2015byby


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