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The Berkeley city attorney’s office has good reason to gloat over this week’s California Supreme Court ruling that the state’s universities aren’t exempt from paying for impacts of developments on surrounding communities. 

But that doesn’t mean the ruling will have much impact in Berkeley, said Deputy City Attorney Zac Cowan, who co-authored a key brief in the case with his boss, City Attorney Manuela Albuquerque. 

Others, like Anne Wagley, disagree. She’s one of the plaintiffs in a lawsuit by Berkeley citizens who object to concessions the city of Berkeley, represented by Albuquerque and Cowan along with outside counsel, made to UC Berkeley in the settlement of its own lawsuit over UC Berkeley’s Long Range Development Plan. 

Cowan said that the cases are different because UC Berkeley’s growth is incremental and impacts an already existing infrastructure, unlike the development of the new California State University campus at Monterey Bay (CSUMB), where construction of an entirely new campus demanded creation of a new infrastructure. 

In addition, UC Berkeley officials have typically offered mitigation measures in the two key areas where CSU trustees claimed they were exempt: traffic impacts and fire protection. 

In City of Marina v. Board of Trustees of the California State University, the judges refuted the claim by trustees that previous court rulings barred any payments to other governments to mitigate the impacts of the new campus. 

While earlier rulings and the state constitution may block other agencies from levying taxes and assessments on the university system to pay for off-campus infrastructure improvements, the justices denied the claim by CSU trustees that they were equally barred from making voluntary payments. 

UC Regents supported that claim with an amicus curiae (friend of the court) brief.  

At issue were provisions of the California Environmental Quality Act (CEQA) that require developers of projects to mitigate adverse impacts on the environment. 

New campus 

The CSUMB campus is located at the 27,000-acre site of Fort Ord, an army base closed by the Defense Department in 1994 and transferred to Monterey county and a variety of other agencies. That same year, state legislators created the Fort Ord Reuse Authority (FORA) to develop and implement the transition. 

The next year, FORA officials laid out a plan identifying $249.2 million needed capital improvements through 2015. 

Included in the plans was the 1,370-acre site the Army transferred to the trustees in 1994 for construction of a new CSU campus. The school opened in 1995 with 663 students, housed and taught in base buildings. Plans call for an eventual enrollment of 25,000 full-time students. 

Under state law, the trustees were obligated to prepare an environmental impact report (EIR) on their master plan, spelling out the effects of the new campus and specifying steps they would take to mitigate adverse impacts. 

The final documents approved by trustees defined five areas where they would not provide full mitigation: increased runoff that would overtax an inadequate storm drain system, demands on an insufficient water supply, traffic congestion on area roadways, overtaxing wastewater treatment systems and an increased demand for fire protection services. 

Complete mitigation, the EIR declared, would require the regional FORA to make regional infrastructure improvements. 

While FORA planned on the assumption CSU would contribute to the needed improvements, CSU trustees refused to offer anything for fire and road improvements; they also alleged the improvements were FORA’s responsibility and claimed they were legally barred from making any contributions. The trustees further claimed that the benefits conferred by the new campus would outweigh the negative impacts. 

The trustees said their decision to deny any mitigation funds for roadways and fire protection stemmed from a century of court precedents and state legislation. 

San Marcos case 

The key decision, cited repeatedly by the justices in their 44-page ruling, was the July 21, 1986 decision in San Marcos Water Dist. v. San Marcos Unified School Dist., which laid out the basic rule that unless special assessments were specifically authorized by the state legislature, local agencies couldn’t levy them against other agencies. 

The legislature responded with measures permitting such assessments for providing water, light, heat, communications, power, and garbage services and for flood and drainage control, sanitary purposes and sewage collection, treatment and disposal. 

In their EIR, CSU trustees agreed to provide payments for those services but not for the construction of roads and creation of fire protection services. 

Because legislators and the San Marcos ruling hadn’t specified roads and fires, all aspects of those services were the obligation of FORA, not CSU, the trustees argued. 

In response, the City of Marina filed suit. Joining with the city were six groups and the City of Davis that filed amicus briefs. Albuquerque and Cowan drafted a joint brief on behalf of the League of California Cities and the California State Association of Counties. 

The other groups siding with the city were the San Joaquin Raptor Rescue Center, Protect Our Water, the Central Valley Safe Environmental Network and West Davis Neighbors. 

Filing similar briefs on behalf of the CSU trustees were the Regents of the University of California and the Coalition for Adequate School Housing. 

The decision 

The court ruled unanimously that the trustees must vacate their decisions certifying the EIR and adopting their master plan, and set aside their finding that “overriding circumstances” justified approving documents that failed to provide measures to correct the negative impacts of the campus on its surroundings. 

While the courts had no authority to impose specific mitigation measures, the justices ruled, CEQA required them to adopt measures that would adequately mitigate the identified impacts 

The first issue the court dealt with was the claim that CSU couldn’t pay because precedents and law declared such payments “legally infusible.” 

Not so, ruled the justices. 

Simply because they couldn’t be imposed didn’t mean the trustees couldn’t pay them voluntarily to fulfill their CEQA obligations, the court ruled, finding that “the Trustees have misinterpreted San Marcos.” 

The trustees also “abused their discretion under CEQA by certifying an EIR that improperly fails to identify voluntary contributions to FORA as a feasible method of mitigating the environmental impacts of their project.” 

Indeed, “while education may be CSU’s core function, to avoid or mitigate the environmental impacts of its projects is also one of CSU’s functions.” 

Similarly, “the relevant law makes clear that a payment by the Trustees for the purpose of mitigating CSUMB’s environmental effects would not constitute an unlawful gift of public funds,” the judges ruled. Instead, “[s]uch a payment by the Trustees would have the public purpose of discharging their duty as a public agency” to mitigate negative effects as called for by CEQA. 

While the trustees also argued that mitigation of the campus’ impacts on wastewater, drainage, water supply, fire protection and traffic were FORA’s responsibility, the court held that state law mandated that costs “will be borne by those who benefit from them,” and that state agencies are required to budget funds to protect the environment from damages caused by their own activities, even if the effects are outside boundaries of the agency’s property. 

The court also struck down CSU’s claim that their adoption of the EIR and master plan were justified by overriding circumstances in which the net economic, legal, social, technological and other benefits outweigh the adverse effects of development. 

Local impact? 

What does the decision mean for Berkeley, where tensions are running high between town and gown as the university embarks on a massive expansion plan? 

“Not much,” said Cowan—at least for the moment. 

In Marina, the court was looking at the creation of an entirely new campus in a relatively undeveloped area with little or no existing infrastructure, while UC Berkeley’s expansion is taking place within an already developed city with an established infrastructure. 

Impacts in Berkeley are incremental, Cowan said, and the university has consistently offered mitigations in the area CSU trustees denied. 

“For instance, if a development produces enough new traffic to require installation of a new traffic signal, the university will agree to pay for that portion of the signal’s cost” related to the increase, he said. 

The university is also making payments for fire, storm drain, traffic and other impacts.  

Wagley (the Daily Planet’s Arts Editor) and her co-plaintiffs have filed a legal challenge to the settlement agreement between UC Berkeley and the city after Berkeley sued over impacts outlined in the university Long Range Development Plan (LRDP) through 2020. 

In that agreement, the city “dropped all current and future claims for uncompensated services it provides the University,” Wagley said. “The Settlement Agreement will run for the life of the LRDP, until 2020. This directly conflicts with the position the City took in their amicus brief in the Marina case.”  

Cowan said more problems could arise when the university files its final EIR on plans for a quarter-billion dollars in new construction at and around Memorial Stadium. 

“We’re far apart on what impacts are going to be significant and what it will take to mitigate them,” he said. 

For more background on the financial struggles between the university and local governments, see “UC Tax Exemptions Rooted In Law and Court Rulings” in the May 14, 2004, edition of the Daily Planet.