SAN DIEGO, CITY OF v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITYRespondent’s Supplemental BriefCal.October 11, 2013COPYS199557 IN THE SUPREME COURT OF CALIFORNIppeyecourt FILED CITY OF SAN DIEGOetal., OCT 11.2013 Plaintiffs and Appellants, Frank A. MeGuire Clerk v. Deputy BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent. AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE CASE No. D057446 SUPPLEMENTAL BRIEF REGARDING NEWAUTHORITY HORVITZ & LEVY LLP GATZKE DILLON & BALLANCE LLP BRADLEY S. PAULEY(BAR No. 187298) MARKJ. DILLON (BAR No.108329) JEREMY B. ROSEN (BAR No. 192473) MICHAEL S. HABERKORN(BAR No. 159266) *MARK A. KRESSEL (BAR NO. 254933) DANIELLE K. MORONE(Bar NO.246831) 15760 VENTURA BOULEVARD, 18TH FLOOR 2762 GATEWAY ROAD ENCINO, CALIFORNIA 91436-3000 CARLSBAD, CALIFORNIA 92009 (818) 995-0800 » FAX: (818) 995-3157 (760) 431-9501+* FAX: (760) 431-9512 bpauley@horvitzlevy.com mdillon@gdandb.com jrosen@horvitzlevy.com mhaberkorn@gdandb.com mkressel@horvitzlevy.com dmorone@gdandb.com ATTORNEYS FOR DEFENDANT AND RESPONDENT BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY IN THE SUPREME COURT OF CALIFORNIA CITY OF SAN DIEGOet al., Plaintiffs and Appellants, Vv. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent. SUPPLEMENTAL BRIEF REGARDING NEWAUTHORITY Pursuant to California Rules of Court, rule 8.520(d), defendant and respondent the Board of Trustees of the California State University (CSU) submits this supplementalbrief regarding new authorities that were not available at the time CSUfiled its briefs on the merits. As discussed below, two recent Court ofAppeal opinions support CSU’s argumentthat mitigation measure TCP-27, which requires implementation of a Transportation Demand Management (TDM) program, was not an improper deferral of mitigation under CEQA! as the Court of Appeal incorrectly held. 1 (California Environmental Quality Act, Pub. Resources Code, § 21000 et seq.) (See CEQA Guidelines, Cal. Code Regs., tit. 14, § 15126.4(a)(1)(B); OBOM 58-60; RBOM 48-53.) | North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 628-630, 648 (North Coast Rivers Alliance), upheld the lead agency’s determination that two mitigation measures weresatisfactory under CEQA anddid not improperly defer mitigation. Thefirst mitigation measure was a responseto the lead agency’s finding that the project at issue would cause a significant visual impact to the surrounding area. The lead agency proposedto mitigate this impact by hiring a landscaper to design and implement a landscaping plan that would “‘identify the location and typesofplanting(i.e., trees and shrubs) that will soften the visual intrusion of the [project] and identify success metrics such as survival and growth rates for the plantings.” (Id. at p. 628.) Reversing the trial court, the Court of Appeal held this measure was not an improper deferral of mitigation: it was sufficient that the lead agency committed to mitigation in the form . of developing and implementing a landscaping plan, and the performance criteria of “soften[ing] the visual intrusion” was sufficiently concrete. (Id. at p. 630.) The second mitigation measure addressed the lead agency’s finding that the project’s construction activity, which required driving concrete piles into San Rafael Bay, would harm local fish. (North Coast Rivers Alliance, supra, 216 Cal.App.4th at p. 645-646.) To mitigate this potentially significant impact, the lead agency adopted a measurerequiring it to consult with the relevantfishery agency regarding appropriate measuresto reduce the construction’s impacts, and to monitor during construction for signs fish were being injured. (Jbid.) The mitigation measure also listed two measurestypically adopted to protect fish. ([bid.) The Court of Appealreversed the trial court on this point as well, holding the mitigation measure was not an improperdeferral of mitigation, relying in part on information contained not in the mitigation measure but elsewhere in the Environmental Impact Report (EIR). (Id. at p. 648.) In another recent case, Friends of Oroville v. City of Oroville (Sept. 18, 2013, CO70448)__- Cal.App.4th __ [20138 WL 5273738,at pp. *7-*9] (Friends of Oroville), the Court ofAppeal upheld the lead agency's determination that two mitigation measures were not improper deferrals of mitigation. The first mitigation measure concerned drainage andrequired that the project developer retain an engineer to prepare a drainage plan that ensuredproject-related runoff would be released a rate no greater than that of the pre- development condition. (id. at p. *7.) The second measure concerned stormwater managementand required that the developer submit a plan identifying measuresto prevent polluted stormwater runoff from leaving the project site and to ensure that “water quality in downstream waterbodies is not degraded.” (Ibid.) The measure further required that the plan include eleven listed pollution prevention measures demonstrated to be effective at preventing polluted runoff. (Ibid.) The Court ofAppeal upheld both measures as adequate under CEQA. (/d. at p. *8.) Here, as CSU’s merits briefing discussed, in addition to other measures adopted to mitigate traffic impacts, CSU adopted mitigation measure TCP-27, in which the university committed to prepare a TDM program to “facilitate a balanced approach to mobility” (including promoting rideshare programs, transit use, vanpools, and bicycle use) “with the ultimate goal of reducing vehicle trips to campusin favor of alternate modesoftravel.” (AR- 18:17159, 17237-17239, 17514, 17602; 19:18466-18473; see OBOM 58-60; RBOM 48-53.) CSU committed to prepare the TDM program in consultation with the San Diego Association of Governments (SANDAG) andthe San Diego Metropolitan Transportation System (MTS), two local agencies with expertise in transportation matters that take an active role in managing the region’s transportation systems. (AR-18:17159, 17237-17239, 17514, 17602; 19:18466- 18473; AR-20:19759, 19879, 19882, 19898, 19901, 19905, 19912.) The Court of Appeal held that mitigation measure TCP-27 was an improperdeferral of mitigation because it listed “no specific mitigation measures to be considered or any specific criteria or performance standards.” (Typed opn. 61.) Both North Coast Rivers Alliance and Friends of Oroville provide support for the conclusion that, in so ruling, the Court of Appeal (1) failed to appropriately defer to CSU’s finding ontheefficacy of the TDM program and(2) erred by concluding CSU’s adoption of the TDM program violated CEQA. (See OBOM 58-60; RBOM 48-53.) CSU’s mitigation measure commits the university to “the ultimate goal of reducing vehicle trips to campus” (AR-18:17159, 17514), which is more specific than thecriteria of “soften[ing] the visual intrusion,” upheld in North Coast Rivers Alliance, supra, 216 Cal.App.4th at page 630. CSU’s measure can also be said to incorporate a nonexclusivelist of eleven traffic reduction measures from the EIR that the TDM program will consider and potentially employ (AR 18:17237-17238),a list at least as expansive asthelists of measures upheld in North Coast Rivers Alliance, supra, 216 -Cal.App.4th at pages 645-646 and Friends of Oroville, supra, 2013 WL 5273738, at page *7. Finally, CSU’s measure commits the university to developing the TDM program in consultation with relevant government agencies, similar to the approach upheld in North Coast Rivers Alliance. (216 Cal.App.4th at p. 646-647 [holding consultation with fishery agencies was not impermissible deferral because the consultation was required “under the express terms of the mitigation measure”].) In conclusion, these two new authorities provide the Court with additional support for the determination that mitigation measure TCP-27 constitutes adequate mitigation under CEQA. October 4, 2013 HORVITZ & LEVY LLP BRADLEY S. PAULEY JEREMY B. ROSEN MARK A. KRESSEL GATZKE DILLON & BALLANCE LLP MARK J. DILLON MICHAEL S. HABERKORN DANIELLE K. MORONE » Mut ( MarkA.Kressel Attorneys for Defendant and Respondent BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 8.204(c)(1).) The text of this brief consists of 998 words as counted by the Microsoft Word version 2007 word processing program used to generate the brief. Mark A. Kressel Dated: October 4, 2013 PROOF OF SERVICE | STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the timeofservice, I was over 18 years of age and nota party to this action. I am employed in the County ofLos Angeles, State of California. Mybusinessaddressis 15760 Ventura Boulevard, 18th Floor, Encino, California 91436-3000. On October 4, 2013, I served true copies of the following document(s) described as SUPPLEMENTAL BRIEF REGARDING NEWAUTHORITYontheinterested parties in this action asfollows: SEE ATTACHED SERVICELIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelopefor collection and mailing, following our ordinary business practices. I am readily familiar with Horvitz & Levy LLP’s practice for collecting and processing correspondence for mailing. On the same daythat the correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty ofperjury underthe lawsofthe State of California that - the foregoingis true and correct. Executed on October 4, 2013, at Encino, California. Robin Steiner SERVICE LIST San Diego v. CSU Christine Marie Leone (SBN 208803) Office of the City Attorney 1200 8rd Avenue, Suite 1100 San Diego, CA 92101 Phone: (619) 533-6392 Fax: (619) 533-5856 Email: leonec@sandiego.gov Margaret M. Sohagi (SBN 126336) Philip A. Seymour (SBN 116606) Nicole H. Gordon (SBN 240056) The Sohagi Law Group, LLP 11999 San Vicente Blvd., Suite 150 Los Angeles, CA 90049 Phone: (310) 475-5700 Fax: (310) 475-5707 Email: msohagi@sohagi.com pseymour@silcom.com ngordon@sohagi.com John F. Kirk (SBN 149667) Deputy General Counsel San Diego Association of Governments 401 “B” Street, Suite 800 San Diego, CA 92101 Phone: (619) 699-1997 Fax: (619) 699-1995 Email: jki@sandag.org Mark J. Dillon (SBN 108329) Michael S. Haberkorn (SBN 159266) Danielle K. Morone (SBN 246831) Gatzke Dillon & Balance LLP 2762 Gateway Road Carlsbad, California 92009 Phone: (760) 431-9501 Fax: (760) 431-9512 Email: mdillon@gdandb.com mhaberkorn@gdandb.com dmorone@gdandb.com S199557 (Counsel for Plaintiffs and Appellants City of San Diego and Redevelopment Agencyof the City of San Diego) (Counsel for Plaintiffs and Appellants San Diego Association of Governments and San Diego Metropolitan Transit System) (Counsel for Plaintiffs and Appellants San Diego Association of Governments and San Diego Metropolitan Transit System) (Counsel for Defendant and Respondent Board - ofTrustees of the California State University) Beth Collins-Burgard (SBN 222108) Dylan K. Johnson (SBN 280858) Brownstein Hyatt Farber Schreck, LLP 21 East Carrillo Street Santa Barbara, California 93101-2706 Heather Wallace (SBN 205201) Erika Frank (SBN 221218) 1215 K Street, Suite 1400 Sacramento, California 95814 Phone: (916) 444-6670 Fax: (916) 325-1272 Stuart M. Flashman (SBN 148396) Law Offices of Stuart M. Flahman 5626 Ocean View Drive Oakland, California 94618-1533 Phone & Fax: (510) 652-5373 Harriet A. Steiner (SBN 109436) Kara K. Ueda, (SBN 210044) Best Best & Krieger LLP 500 Capitol Mall, Suite 1700 Sacramento, California 95814 Phone:(916) 325-4000 Michael S. Lawson (SBN 48172) 777 B Street, 4th Floor Hayward, California 94541 Phone: (510) 583-4450 Clerk Court of Appeal Fourth Appellate District Division One 750 “B” Street, Suite 300 San Diego, CA 92101 Hon. Thomas P. Nugent San Diego Superior Court North County Division Vista Regional Center 325 S. Melrose Dr., Dept. 30 Vista, CA 92081 (Counsel for Amici Curiae League of California Cities and California State Association of Counties) (Counsel for Amici Curiae California Chamber of Commerce and California Business Roundtable (Counsel for Amicus Curiae Hayward Area Planning Association) (Counsel for Amicus Curiae City of Hayward) (Counsel for Amicus Curiae City of Hayward) D057446 GIC855643 (Lead Case)
