Judge Barbara Miller has given cause for celebration by both the university proponents of the stadium-with-athletic-center project and the litigants and other community members opposed to the present proposal. Each side could rightfully claim on release of the opinion that they were victorious. But neither side can rightfully deny the other side’s success.
In the immediate term the opponents won three points: that the university is bound by the terms of the Alquist-Priolo legislation prohibiting certain new construction in earthquake fault zones, that the university must calculate to what degree the athletic-center portion of the project constitutes an “alteration” of the stadium, and that the university must explain why it “needs” to double the number of events at the stadium.
Strategically, the opponents also scored by being deemed the prevailing party in the court’s direction that the university must take further action to comply with law. As prevailing party, the plaintiffs will be relieved of an obligation to pay for production of the 40,000-page record and will now be eligible for a colorable claim to a substantial attorneys’ fee award, enabling them to press their case in subsequent proceedings. And unless the court decides to allow part of the project to proceed in the wake of a judgment against the university, the opponents have succeeded in maintaining the physical status quo.
In the long term, however, the university would likely prevail in its ambitions, under Judge Miller’s decision. That is because the court exhibited throughout its opinion remarkable deference to the university’s factual assertions and prerogatives to define its own means of complying with Alquist-Priolo and the California Environmental Quality Act (CEQA). Except for the need to explain why it must expand off-season stadium use, the university emerged with a complete victory in favor of its EIR. Consistently with its performance to date, the university will likely have little difficulty revising its calculations and conclusions to its advantage, with the court likely showing those determinations the same deference given to the overwhelming remainder of the environmental conclusions in the case.
The question then becomes: Is there merit in an appeal to change this decision? If the opponents can mount a meritorious appeal, they find themselves in an extremely advantageous position: under Judge Miller’s ruling the proponents cannot proceed until she discharges the writ of mandate to come, but by appealing the judgment partially in their favor the opponents will take jurisdiction of the case to the court of appeal and beyond Judge Miller’s ability to discharge the writ while that appeal is pending. Assuming that an appeal is filed, and neither Judge Miller nor the court of appeal takes the extraordinary action of allowing the project to begin, we can anticipate a further stay of one to two years’ duration.
Before assessing the potential merit in an appeal, a brief tutorial in administrative law will be helpful. In reviewing the university’s actions under the essentially procedural CEQA, courts are supposed to apply two tests: Did the regents proceed as required by law, and, if so, is their decision supported by substantial evidence? Successful project opponents litigate their cases on the premise that the agency’s environmental work-up committed errors of law; successful proponents defend on the premise that the court need only find substantial evidence supporting the agency’s final conclusion. Judge Miller’s decision largely adheres to the “substantial evidence” approach; while the court recites the correct dual-ground legal standard (p. 36), the judge slides over the “proceed in the manner required by law” criterion and then proceeds to adjudicate only the presence or absence of substantial evidence.
If “substantial evidence” were the only test, the university would be assured of a victory on appeal as broad as its success before Judge Miller. The analysis of appellate success (under both the Alquist-Priolo and CEQA claims) must then address to what extent the university, and consequently the superior court, failed to proceed as required by law.
While the superior court adopted the substantial evidence test to measure the Alquist-Priolo claims (p. 19), its ultimate treatment of those claims becomes more complicated. Under the classical model of administrative law, when a reviewing court determines the record is incomplete, is ambiguous, or fails to resolve a relevant issue, the judge is to set aside the flawed decision and remand the matter to the agency to correct. That model assures that the court does not substitute for the agency’s first responsibility to arrive at its own decision correctly, nor substitute its substantive view for the agency’s.
Judge Miller did not follow this model in her adjudication to date, and it remains open to see if she will not follow it before she enters final judgment against the university on the two points of its shortcoming. Unsure about the university’s evaluation of the Alquist-Priolo parameters of “addition” to or “alteration” of the stadium, and the value of the university’s late-prepared “Geomatrix” fault-line assessment, which was not part of the EIR, after reviewing the university’s record leading up to its decision the court took written “expert testimony” and held further argument on that testimony (pp. 8-9). Some press accounts speculate that the judge will repeat this process next week with respect to the university’s failure to determine the value of the athletic center’s “alteration” of the stadium, compared to the value of the stadium in existing condition, and failure to date to explain why it must expand the number of stadium events.
One potential ground of appeal, then, will be the court’s decision to conduct further hearings to solicit post-decisional “cures” from the university, rather than to adjudicate only from the record built before project approval. Lest that error, if asserted, be considered technical, sound legal and political factors emphasize its significance: not just the duty of the university to get it right but also the right of the public to participate in the university’s subsequent proceedings attempting to get it right. In the case of the Alquist-Priolo seismicity factors, reopening that matter (and the Geomatrix report) to the public in a supplemental EIR process will give all interested parties, including public agencies such as the U.S. Geologic Survey, an opportunity and duty to critique it, which they did not hold under the court’s procedure to date.
Related to that point is the superior court’s ruling that after the final EIR’s completion, significant new information did not come forward to merit a renewed period of public EIR comment before the regents approved the project (p. 54-57). Judge Miller reasoned that because substantial evidence supported the university’s assertion that the new information (principally the Geometrix report) was not “significant,” she had to defer to the university. But that reasoning is inconsistent with the court’s own treatment of the same information: it was “significant” enough for her to find the need for further briefing, hearing, and argument on it. An appellate court might well conclude that, to restore internal consistency to the entire administrative and judicial proceeding, as a matter of law the superior court had to require recirculation to the public of evidence and assertions the court itself found worthy of its own consideration based on new post-approval testimony.
On the substance of the Alquist-Priolo prohibition of substantial “additions” or “alterations” to the stadium structure, the superior court engaged in a thorough analysis of the meanings of those two words, recognizing that prior case law had not defined them (pp. 25-29.) Judge Miller’s reasoning here can be praised for its precise adherence to standard building-code practice. But to apply another metaphor in this stadium-athletic-center dispute, did the court miss the forest for the trees? A substantial case can be presented on appeal that because the university insists that for CEQA purposes the stadium and center form an integrated project (pp. 68-70), they should be treated the same for Alquist-Priolo—indeed before it became aware of the Alquist-Priolo implications, the university in its draft EIR defined the athletic center as an addition to the stadium. The court of appeal might apply the same common-sense reality to the regents’ Alquist-Priolo compliance, further confining the university’s discretion to do more than restore the stadium. (Should the plaintiffs appeal, the regents would be expected to cross-appeal on Judge Miller’s well-reasoned conclusion that Alquist-Priolo applies to the university.)
The university’s shifting definition of the project forms another subject worthy of appellate attention. Judge Miller refuted the plaintiffs’ assertion of this claim, ruling that here the inconsistent project definition (is it the stadium with athletic center, is it just the athletic center, is it just the athletic center with only part of the stadium retrofit, can it be just the stadium itself?) “contrasts starkly with the facts” (p. 75) of the leading CEQA case on project stability, County of Inyo v. City of Los Angeles (Cal. App. 1977). But as the attorney for Inyo County in that case, I am not so sure the differences are that great. In both matters the project proponent asserted differing and inconsistent project descriptions that met its litigation, not functional, needs. And in both cases the unstable project definition led to failure to explore meaningful alternatives, another of the plaintiffs’ claims that Judge Miller rejected (pp. 93-112), but which may merit reversal to require the university to “proceed in the manner required by law.”
CEQA law has added much in the three decades since Inyo was decided. In general, the courts have vigorously enforced the need for a genuine examination of alternatives that pose real, not false, choices, the leading California Supreme Court case being that of Laurel Heights Improvement Assn. v. Regents (I) (1988) (yes, our regents). Judge Miller’s alternatives analysis did not apply that case. But just earlier this month, the California Supreme Court legitimated the EIR for the CALFED Bay-Delta program, ruling that CALFED did not need to consider an alternative that reduced rather than increased water exports from the Delta—a decision made more remarkable by the fact that federal court decisions have now required that reduced-export reality. (In re Bay-Delta Programmatic EIR, (Cal. June 5, 2008).) Suffice it to contemplate at this time the stadium decision, if taken to the court of appeal, will provide worthy “project definition” and “alternatives” material for that tribunal.
Finally, in a less-prominent procedural dispute between the stadium parties, Judge Miller sustained the ability of the regents to delegate their final approval authority to a committee of the regents (p. 37). The superior court reached this result by distinguishing this case from those that prohibit delegation from an elected city council to an unelected planning commission. But while the plaintiffs’ assignment of error here could obviously be cured easily, with the regents just placing the matter before their full body, the point of law merits appellate review. That is particularly so with the unique board of regents, who are appointed for multi-year terms by a succession of California governors, and which therefore usually embrace a diversity of environmental values. Allowing less than the full board to approve both the EIR and the ultimate project (or projects?) at issue here allows for a small majority to eliminate all opposing views in the record by selecting a committee that excludes the minority.
(A note about citations and conventions. Page numbers refer to the pages in the decision as posted here. “stadium” means California Memorial Stadium. “athletic center” means the entitled Student Athlete High Performance Center, on the premise that readers would not expect Cal to approve a low-performance one. “regents” or “the regents” means The Regents, an honorific style that most manuals reserve for royalty and The Times.)
Antonio Rossmann practices land-use and water law and teaches those subjects at the UC Berkeley’s Boalt Hall. In the 1970s he represented citizens challenging UCLA’s Long-Range Development Plan. In the 1980s he defended Stanford’s 20-year master plan. More recently he has represented the County of Merced in coordinating its land-use plans with those of the new UC campus there. Past chair of the California State Bar Committee on the Environment, Mr. Rossmann is not affiliated with any of the parties to the stadium-athletic-center dispute.