In The Court of Appeal Ofthestateofcalwo Fourth Appellate District Division One

Appellate Court Case No.
D057446
IN THE COURT OF APPEAL

OFTHESTATEOFCALWO~
FOURTH APPELLATE DISTRICT
DIVISION ONE
SAN DIEGO ASSOCIATION OF GOVERNMENTS and SAN DIEGO

METROPOLITAN TRANSIT SYSTEM,
Petitioners and Appellants,
v.
BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY,
Defendant and Respondent.
OPENING BRIEF OF APPELLANTS SAN DIEGO ASSOCIATION OF

GOVERNMENTS AND SAN DIEGO METROPOLITAN
TRANSIT SYSTEM
From the Judgment of the Superior Court of the State of California,

County of San Diego, Honorable Thomas Nugent
San Diego Superior Court,
. . Superior Court Case No. GIC 855643 (Lead Case).
[Consolidated with Case Nos. GIC 855701; 37-207-00083692-CU-WM-CTL; .
37-2007-00083768-CU-TT-CTL; 37-2007-00083773-CU-MC-CTL]
THE SOHAGI LAW GROUP, PLC SAN DIEGO ASSOCIATION OF

Margaret M. Sohagi, State Bar No. 126336 GOVERNMENTS
Philip A. Seymour, State Bar No. 116606 John F. Kirk, Deputy General
Nicole H" Gordon, State Bar No. 240056 Counsel, State Bar No. 149667
11999 San Vicente Boulevard, Suite 150 401 B Street, Suite 800
Los Angeles, California 90049-5136 San Diego, California 92101
Telephone: (310) 475-5700 Telephone: (619) 699-1997
Facsnnile: (310) 475-5707 Facsimile: (619) 699-1995
Attorneys for Petitioners and Appellants

SAN DIEGO ASSOCIATION OF GOVERNMENTS and
SAN DIEGO METROPOLITAN TRANSIT SYSTEM
·Table of Contents
I. IN'fRODUCTION AND SlIMMARY 1
II. STATEMENT OF TIlE CASE 4
A. STATEMENT OF APPEALABILITy , 4
B. STATEMENT OF FACTS 5
1. The Campus Expansion Proj ect 5
2. Project History 6
3. Traffic and Transportation System Impacts 7
4. SANDAGIMTS Participation 10
5. Litigation History 11
C. STANpARD OF REVIEW 12
III. TlIEEIR FAILED TO ADEQUATELY ADDRESS POTENTIAL

IMP ACTS RESULTING FROM SUBSTANTIAL INCREASED USE OF
PUBLIC TRANSIT BY SDSU STUDENTS" FACULTY AND STAFF 14
A. The EIR's Forecast of Massive Increases in Transit System Use and

SANDAG's Comments 15
B. Comments on the Draft EIR and CSU Responses 16
C. There Is No Legally Viable Excuse for the EIR's Failure to Address

Transit Impacts 18
1. Transit-Related Impacts are Environmental Impacts 19
2. There is No Public Policy Against Identifying and

Mitigating Transit-Related Impacts 21
3. CSU Cannot Avoid Liability for Deficiencies in the EIR by

Blaming SANDAG for Allegedly Failing to Provide
Information " 23
D. CSU Cannot Rely on Its Own Failure to Investigate or Obtain Relevant

Information to Justify a Failure to Address Potential Transit-Related
Impacts 26
E. The EIR Failed to Adequately Respond to SANDAG's Comments on

the DraftEIR 28
Table of Contents
(continued)
IV. CSU'S PURPORTED FINDING OF NO SIGNIFICANT TRANSIT-

RELATED IMPACTS IS LEGALL Y INSUFFICIENT AND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE 29
A. The Purported Finding of No Impact Does Not Excuse Failure to

Address Potential Transit Related Impacts in the EIR 29
B. The Finding is Legally Deficient on Its Face 30
C. The Finding is Not Supported by Substantial Evidence 30
V. THEEIR'S ANALYSIS OF VEHICLE TRAFFIC IMPACTS IS

LEGALLY DEFICIENT AND DRASTICALLY UNDERSTATES THE
ACTUAL IMPACTS OF THE PROJECT 33
A. The Substantial Analytical Errors in the EIR Are Grounds for

Overturning Certification 33
B. The EIR Made Two Critical Errors in its Calculation of Vehicle Trips
from New Resident Students 35
1. The EIR Double-Counted Transit Reductions for New

Resident Students 36
2. The EIR Erroneously Treated New Residents Students as

Existing Commuters ~ 38
C. The EIR's Analysis of Non-Resident Student Traffic Increases is

Based on a Patently Faulty Analysis and is Not Supported By
Substantial Evidence ~ 41
D. CSU's "Fair Share" Mitigation Calculation is Based on the EIR's

Faulty Traffic Analysis and is Not Supported by Substantial Evidence 44
VI. CSU ILLEGALLY DEFERRED MITIGATION OF TRAFFIC IMPACTS 45

VII. JOINDER IN CITY'S BRIEF 47
VIII. CONCLUSION 47
11
SANDAGIMTS JOINT OPENING BRIEF
L INTRODUCTION AND SUMMARY
Appellants in this case are the San Diego Association of Governments,

generally known as SANDAG, and the San Diego Metropolitan Transit System
("MTS"). SANDAG is an association of governmental agencies that includes the
County of San Diego, all 18 incorporated cities in the county, and representatives of
various other special purpose state and local agencies and districts. SANDAG serves
as a regional planning agency for San Diego County, with special responsibilities for
developing a coordinated and comprehensive regional transportation system to meet
the needs of all county residents, businesses and institutions. These responsibilities
include preparing and updating a Regional Transportation Plan, obtaining, distributing
and administering funds for major transportation projects of all types, and
coordinating, to the extent possible, the planning and transportation activities of the
region's many public agencies, institutions and major employers. MTS is responsible
for the hands-on operation, improvement and administration of two of the region's
key public transportation systems, the San Diego Trolley light rail system and the San
Diego Transit Corporation bus system. It is safe to say that the quality of life of many
San Diego residents, at least as measured by the ability to get to work, school,
shopping or recreational destinations safely and efficiently, depends in large part upon
the efforts of SANDAG and MTS. MTS plays a particularly crucial role by providing
safe and efficient public transportation for San Diego area residents who cannot
afford, or choose not to utilize, private automobile transportation for economic,
personal or environmental reasons.
SANDAG and MTS do not operate in a vacuum, and they do not possess
powers that allow them to solve difficult transportation planning problems by fiat.
Instead, their success is dependent largely upon the cooperation of other public
agencies and institutions - and the general public -- in the region. This case is about a
1
failed effort to work with respondent Board of Trustees of the California State
University ("CSU") to address serious problems posed by planned expansion of the
California State University campus in San Diego ("SDSU").
CSU unquestionably has its own mission to perform, and it is an important
one. However, CSU's educational mission does not entitle it to ignore the legitimate
concerns of the public and fellow public agencies affected by its actions, particularly
those responsible for ensuring that CSU students, faculty and staff can actually travel
to and from the SDSU campus without spending more time in transit vehicles than in
the classroom, lab or maintenance shop. This is not merely a moral duty, but, under
the California Environmental Quality Act ("CEQA"), a legal one. CEQA simply does
not allow CSU to ignore the potential consequences of its actions or avoid
consideration of potential mitigation measures as it has in this action.
The most fundamental violation ofCEQA at issue concerns CSU's complete
failure to address the impacts that will result from SDSU's massive increased use of
public transit systems to transport additional students, faculty, staff and visitors to and
from the SDSU campus in connection with its 2007 Campus Master Plan Revision
("Campus Expansion Project"). These potential impacts are not exempt from review
under CEQA, as CSU contends. They are physical, real and substantial. The
probable impacts include crowding and overloading of existing transit facilities, the
need to physically improve or add to existing transit facilities, increased trolley car
and bus trips to serve additional passengers, and the danger that saturation of the
transit system will force passengers to revert to individual vehicle transportation, with
corresponding effects on traffic. When confronted with the need to address these
impacts in comments on the Draft Environmental Impact Report ("EIR") for the
Campus Expansion Project, CSU responded only with illegitimate excuses for
refusing to investigate and analyze these impacts as required by CEQA. These
excuses are analyzed and debunked in detail in this brief. The bottom line is the Final
2
ErR certified by CSU failed to contain any reasoned discussion of potential transit-
related impacts and was, thus, legally deficient under CEQA. CSU's response to
comments on this issue were also legally deficient under Title 14 Cal. Code Regs.
("Guidelines") § 15088, which provides an additional ground for vacating
certification of the ErR. A last minute finding by the CSU Board of Trustees that the
project would have no significant impact on transit services does not save the ErR.
This conclusory fmding was legally deficient on its face, unsupported by any
substantial evidence in the record, and insufficient to excuse CSU from undertaking
some reasonable discussion and public disclosure of potential transit-related impacts
in the ErR, even if only to set out a legitimate factual basis for finding these impacts
insignificant.
The ErR at issue in this case also failed in other respects. In multiple
instances, the ErR demonstrably understated the automobile traffic impacts that will
result from the Campus Expansion Project. It is unknown whether these errors were
merely negligent or the results of a deliberate attempt to understate traffic impacts
and, therefore, reduce CSU's potential liability to fund necessary mitigation measures.
In either event, however, the errors are substantial in nature and completely
. undermine the EIR's validity and usefulness as a tool for analyzing and disclosing the
project's traffic impacts. These errors in turn served to wrongly minimize CSU's
obligations to commit funds or utilize other measures to mitigate the Project's
significant traffic impacts. A full appreciation of the nature and extent of these errors
will, unfortunately, require the Court to delve into the details of the methods and
assumptions used by CSU's ErR consultants to analyze traffic impacts. Appellants
are well aware of the standard of review which governs this appeal and the deference
normally owed to technical conclusions and purported expert opinions expressed in an
ErR. The substantial evidence test, however, is not a blank check for manipulation of
facts or data. It does not protect purported expert opinions, analyses or conclusions
3
based on demonstrably false or contradictory assumptions unsupported by either logic
or evidence in the record.
As a final matter, CSU erred by relying on future adoption of an undefined

"Transportation Demand Management" ("TDM") program as a mitigation measure for
the Project's significant traffic impacts. It is well established that a lead agency may
not rely on purported mitigation measures that simply defer formulation of actual
mitigation plans to the future.
In the final analysis, the EIR fails in its function as a public informational
document and as a foundation for recognition and mitigation of significant
environmental impacts. Appellants are confident that, as was said by the California
Supreme Court of another university respondent, CSU, "with the vast intellectual
resources at its disposal," will be capable of remedying these deficiencies on remand

by preparing an EIR which fully and honestly addresses the transportation-related
impacts of the Campus Expansion Project, and meaningfully addresses mitigation
measures necessary to assure that CSU's own students, staff and faculty and the
general public do not suffer the consequences of poor transportation planning or a
denial of responsibility for addressing transportation impacts by CSU. (Laurel
Heights Improvement Association of San Francisco, Inc. v. The Regents of the

University of California (1988) 47 Ca1.3d 376,399.)
II. STATEMENT OF THE CASE

A. STATEMENT OF APPEALABILITY
This appeal is from a fmal judgment denying relief on petitions for writ of
mandate. MTS and SANDAG timely filed notices of appeal from this [mal
judgment on June 21 and 22,2010, respectively. (7 CT 1688-1690; 1691-1692.)
These appeals are authorized by Code of Civil Procedure § 904.l(a)(2).
4
-zt_ .
B.. STATEMENT OF FACTS
1. The Campus Expansion Project
The "Campus Expansion Project" or "Project" at issue in this case involves

adoption and implementation of a revised 2007 Master Plan for the CSU campus at
San Diego. Implementation of the Master Plan will involve expansion of campus
facilities and programs to accommodate 35,000 full-time equivalent students
("FTES") by 2024/2025. (AR 15{222} 14239.) This represents an increase of

10,000 FTES over the enrollment ceiling of25,000 previously planned for SDSU.
This increase in 10,000 FTES translates into a probable actual increase of 11,385
enrolled students per year by 2024/2025 (or a total of 44,826 enrolled students
overall), plus the addition of approximately 691 faculty, and 591 service and
support staff persons by 2024/2025. (AR 15{222} 14233, 14239.) To
accommodate this expected growth in student/faculty/staff, the revised Master Plan
includes physical development of the following new or expanded facilities:
• Adobe Falls Faculty/StaffHousing project, consisting of348 faculty and staff
housing units located north of Interstate 8. CAR 15{222}14209.)

• Alvarado Campus expansion, consisting of phased construction of612,000
gross square feet of new academic, research and medical facility space, plus a
552,000 gross square foot parking structure. CAR 15{222} 14210.)
• Alvarado Hotel- construction of a 6 story, 120 room hotel for campus guests
and visitors. (AR 15{222} 14210.)
• Student Housing - replacement and expansion oftwo existing student housing
structures (dorms) and addition of three additional new structures to provide a
net increase of2,976 new student housing beds on campus. (AR

15{222} 14210-14211.)
• Student Union expansion - renovation and 70,000 square foot expansion of the
5
existing Aztec Center to provide additional social space, recreational facilities,
office space, food services and retail services. (AR 15{222} 14211.)
• Campus Conference Center - a new 3-story, 70,000 square foot structure for
.,meeting and conference uses, office space and related food and retail services.
(AR 15{222} 14211.)
2, Project History
The 2007 Master Plan at issue is the result of a fairly lengthy planning
process. In September 2005, CSU approved a prior version of the Campus Master
Plan Revision and certified the EIR prepared for the project. (AR 5{43}04349-
04350.) The following month, the City of San Diego, the Redevelopment Agency
of the City of San Diego (collectively, the "City") and a citizens group, Del Cerro
Action Council, filed separate petitions for writ of mandate challenging this
certification. (3 Clerk's Transcript ("CT") 636-651; AR 16{244}15175-15198.)
The City specifically challenged CSU's position, taken in the 2005 EIR, that CSU
was not responsible for mitigating significant impacts to off-campus roadways
resulting from the proposed project. (3 CT 630-637; AR 16{244} 15210-15213.)
In July 2006, the California Supreme Court ruled against CSU on this point in a
separate case - City of Marina v. Board of Trustees of the California State

University (2006) 39 Ca1.4th 341. In response to this decision, and before the trial
court rendered judgment on the City's case against CSU, CSU set aside its 2005
Master Plan approval and related EIR certification. (AR 15{222}14221.)
Accordingly, the trial court entered judgment against CSU in September 2006 and
issued a writ of mandate directing CSU to bring the EIR into compliance with
CEQA. (3 CT 630-633.)
6
In June 2007, CSU circulated a Draft EIR for the 2007 Campus Master Plan
Revision, the subject of this litigation. (AR 17{261}16913.) The Draft ErR,
including all appendices, is foundat AR 15, Tab 220 through AR 17, Tab 259 .
.- CSU received approximately 87 comment letters on the Draft ErR from
various federal, state and local agencies and members of the public, including the
City and SANDAG. (AR 17{263} 16922-17138.) CSU provided written

responses to these comments (AR 18{264} 17139-17484), and prepared a Final
EIR in November 2007. The complete Final ErR is found in AR 17, Tab 260
through AR 19, Tab 290.
CSU held a public meeting on the Final ErR and Master Plan Revision on
November 14,2007. (AR 19{292}18385-18406.) SANDAG, MTS, the City,

CalTrans and numerous members of the public raised their concerns about
approval of the Master Plan and inadequacies in the ErR directly to the CSU
Board. (AR 19{299} 18568-18599; 19{310} 18630-18635; Supplemental
Administrative Record ["SAR"] 27{592}S22577-S22578.) Nevertheless, CSU
certified the ErR and approved the 2007 Campus Master Plan Revision at the
November 14,2007 meeting. (AR 19{303}18616-18619.) In connection with this
certification, CSU adopted CEQA Findings of Fact and a Statement of Overriding

Considerations. (AR 19{297}18449-18525.)
3. Traffic and Transportation System Impacts

This appeal focuses on the 2007 EIR's faulty analysis of traffic and transit
system impacts. This analysis is presented in Section 3.14 of the EIR, entitled
"Transportation/Circulation and Parking." (AR 15{238} 14764-14881.) The

analysis is based primarily on a technical report prepared by Linscott, Law &
Greenspan, which appears as Appendix N to the Final ErR. (AR 17{257} 16302-
16790.)
7
SANDAG/MTS JOINT OPENING BRIEF
The EIR concluded that increased traffic would result from three major
components of the Project: (1) the increase in student enrollment (and related
increases in faculty and staff) authorized by the project; (2) the development of the
Adobe Falls Faculty/Staff housing; and (3) operation of the Alvarado Hotel. CAR
15{238} 14794.) The details of how traffic generated from these sources was
calculated - and the means used to grossly understate some potential impacts - are
discussed in greater detail where appropriate in this brief. In broad terms,
however, the EIR concluded traffic would increase by an average of 2.4 7 average
daily trips ("ADT") for each of the 7,401 new non-resident students (i.e., students
not living in campus-related housing) added as a result of the Campus Expansion

. Project, or a total of 18,280 ADT. (AR 15{238} 14795-14796, 14801.) This figure
is based on the current (2006) average number of daily trips per non-resident
student recorded at the SDSU campus, and purports to take into account all traffic
from faculty, non-resident students, university staff, vendors and other visitors.
CAR 15{238} 14796.) This figure also implicitly takes into account the fact that in
2006, substantial numbers ofCSU students, faculty and staffwere already utilizing
the MTS Green Line trolley to commute to campus, and thereby not generating
additional ADT. As indicated elsewhere in the EIR, an average of 5,982 trolley
"boardings" occurred at the SDSU station during this time period, of which 79
percent were attributable to CSU students, faculty or staff. (AR 15{238} 14797;
17{257} 16557.)
The ErR also addressed additional traffic expected to be generated by the
projected total of3,964 new "resident" students living on or adjacent to campus,
and by the Adobe Falls Faculty/StaffHousing and Alvarado Hotel components of
the expansion. Only the highly creative treatment of student-related impacts is at

issue in this appeal. By dint of various statistical gymnastics, which are addressed
8
in detail later in this brief, the EIR concluded that resident students would generate
an average of 0.64 ADT, or a total of2,550 ADT, in 202412025. (AR
15{238}14796,1480l.)
All together, the EIR projected the Campus Expansion Project would
generate a total of23,404 ADT by 2024/2025. CAR 15{238} 14801.) This figure
was then virtually cut in half, however, by addition of a "shift-to-trolley" discount,
which purports to account for the effects of increased utilization of the trolley line
in lieu of traditional vehicles by future CSU students, faculty and staff. CAR
15{238} 14802.) Specifically, the EIR projected trolley ridership would increase
from an existing 5,982 riders or "boardings" per day to 11,624 riders by 2024-
2025, an increase of6,898 riders per day. (AR 15{238} 14797.) Based on the
assumption that this trolley ridership will take the place of two-way vehicle trips to
and from campus, the EIR concluded the "shift-to-trolley" effect would reduce
average daily vehicle trips attributable to the Project by an astonishing total
reduction of 10,920 ADT, or over ~ of the total ADT (20,830) projected to result
from increased student enrollment. (AR 15{238} 14797-14798, 14800-14802.)
With this optimistic assumption, the EIR concluded that total traffic generated by
the Project would be only 12,484 ADT from new students, faculty, staff; vendors
and visitors. (AR 15{238} 14801-14802.) As discussed in this brief, the 10,920
"shift-to-trolley" discount artificially deflates automobile vehicle impacts by
assuming, contrary to all evidence and inconsistent with the EIR's own forecasting
methodologies, that all new trolley riders represent net reductions in future
automobile trips. This assumption ignores the fact that the traffic generation rates
employed in the EIR already assume a substantial portion of students, faculty and
staffwill utilize public transportation to commute to SDSU. The EIR cannot
reasonably claim a reduction in vehicle traffic for individuals who were assumed,
based on actual evidence, not to be potential automobile commuters to begin with.
9
The traffic generation numbers discussed above were used to predict actual
Project impacts on area roadways and intersections, and to derive resulting
recommendations for traffic mitigation measures. (AR 15{238}14803-14881.)
Even with the egregious understatement ofproject related impacts, the EIR
concluded numerous area roadways and intersections would suffer significant and
unavoidable impacts. (AR 15{238}14881.)
4. SANDAGIMTS Participation
SANDAG, for obvious reasons, has been closely concerned with the
Campus Expansion Project since its inception. SANDAG submitted written
comments on the 2005 EIR, but did not participate in the subsequent litigation
initiated by the City and Del Cerro. (AR 3 {17}02112, 02486-02487.)
SANDAG also submitted comments on the Notice of Preparation ("NOP")
of the Draft EIR for the 2007 Master Plan Revision. (AR 16{244} 15271-72.) In
its comments on the NOP, SANDAG specifically requested that "[w]hen the EIR
addresses potential transportation, parking, and air quality impacts, it should take
into account the capacity of the San Diego Trolley to meet some of that travel
demand ..." (AR 16{244} 15271.)
While the new Draft EIR was under preparation, CSU conducted meetings
with SANDAG, CalTrans and other agencies concerning traffic and transportation
issues. (AR 21 {326}20540-20547.) In these meetings, SANDAG advised CSU

representatives of the need for improvements to affected public transit facilities
and to discuss participation of CSU in funding improvements as mitigation for the
Project's transit system impacts. In CSU's own words, by July 2007, SANDAG
was taking a "stem approach" to mitigation. (AR 21 {326}20540.) It soon became
apparent that CSU was not interested in acknowledging, much less mitigating,
impacts to the transit system. In formal comments on the Draft EIR submitted in
10
August 2007, SANDAG reiterated its position that CSU needed to analyze and
develop mitigation measures for the Project's impact on transit use and transit
systems. The comment letter also advised CSU of other deficiencies in the Draft
EIR. (AR 21 {327}20664-20668.) CSU's responses to these comments are
addressed in detail later in this brief. In short, CSU asserted it was not required to
address transit-related impacts in the EIR or to accept any responsibility for
mitigating such impacts. (AR 18{264} 17229-17232.)
A final meeting in August 2007 produced no change in position by CSU.
(AR 21{326}20542-20547; SAR 26{467}S22051-S22052.) In a joint letter

submitted in November 2007, SANDAG, the City and CalTrans reiterated
concerns over the EIR's failure to adequately address numerous transportation
issues and particularly the failure to address transit-related impacts. (AR
19{310} 18630-18635.) MTS submitted a separate letter advising CSU that the
existing trolley and bus transit systems serving SDSU "cannot possibly meet [the]
demand" generated by the Project for transit services. (SAR 27 {592}S22577-

S22578.) MTS estimated that to actually accommodate the increased demand
forecasted in the EIR without adverse impacts, approximately $27 million in
capital improvements and an additional $1 million per year in operating expenses
would be required. (Id.)
5. Litigation History
On December 14, 2007, SANDAG and MT~; filed a petition for writ of
mandate challenging CSU's certification of the EIR and approval of the Master
Plan. (1 CT 1-15,21-36.) The City also filed a separate petition for writ of
mandamus challenging CSU's actions. (1 CT 37-50.) The trial court subsequently
consolidated these actions. (2 CT 323-324.)

After extensive briefing and wrangles over the administrative record not at
11
issue in this appeal, the trial court adopted a Statement of Decision on February 11,
2010 rejecting all of the City's, SANDAG's and MTS's claims. (7 CT 1622-
1654.) On March 26,2010, the trial court discharged the September 2006 writ,
which had directed CSU to bring its 2005 ErR into compliance with CEQA,
finding CSU had met the requirements of City of Marina. (7 CT 1655-1657.)
Judgment was entered on April 23, 2010. (7 CT 1660-1661.)
C. STANDARD OF REVIEW
The decision ofCSU to approve the Master Plan is a quasi-legislative decision

subject to review under the abuse of discretion standard established in Public
Resources Code § 21168.5. (Laurel Heights, 47 Ca1.3d at 392.) An abuse of
discretion is established if the agency has "not proceeded in a manner required by law .
or if the determination or decision is not supported by substantial evidence." (Id)
Under the foregoing standard, the Court reviews questions of primarily a

factual nature under the substantial evidence test. (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Ca1.4th 412,435;
Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124

Cal.App.4th 1184, 1198.) The Court does not determine the ultimate correctness
of the respondent agency's findings or conclusions" but only whether they are
supported by substantial evidence in light of the whole record. (Laurel Heights, 47
Ca1.3d at 392-393.) "Substantial evidence" is defined as "enough relevant

information and reasonable inferences from this information that a fair argument
can be made to support a conclusion, even though other conclusions might also be
reached." (Bakersfield Citizens, 124 Cal.AppAth at 1198; Guidelines § 15384(a).)

Substantial evidence may consist of "facts, reasonable assumptions predicated
upon facts, and expert opinion supported byfacts." (Guidelines § 15384(b).)

Substantial evidence, however, does not include mere "[a ]rgument, speculation,
12
unsubstantiated opinion or narrative," nor purported evidence "which is clearly
inaccurate or erroneous." (Public Resources Code § 21082.2(c), emphasis added;
Bakersfield Citizens, 124 Ca1.AppAth at 1198.) Although the Court is generally
not entitled to independently reweigh the evidence, the Court must "carefully
scrutiniz]e]" the record to determine whether agency's determinations are actually
supported by substantial evidence. (Laurel Heights, 47 Ca1.3d at 408.) Further,

the Court must consider the evidence in the record "as a whole." (Id., emphasis in
original.) The Court thus may conduct a limited weighing of the evidence to
determine whether, viewed in context of the entire record, it is indeed
"substantial." (Bolsa Chica Land Trust v. The Superior Court of San Diego
County (1999) 71 Cal.AppAth 493, 503.)

The Court independently reviews the record to determine whether the
respondent has committed legal error, i.e. failed to proceed in the manner required
by law. (Vineyard, 40 Ca1.4th at 435.) The reviewing Court must "scrupulously
enforc[e] all legislatively mandated CEQA requirements." (Id., citing Citizens of
Goleta Valley v. Board of Supervisors (1990) 52 Ca1.3d 553,564.) To this end, the
Court does not review the ultimate correctness of an Elk's conclusions (provided
they are supported by substantial evidence), but does independently determine the
legal sufficiency of the ErR as an informational document. (San Joaquin Raptor
Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 653; County of
San Diego v. Grossmont-Cuyamaca Community College District (2006) 141
Cal.AppAth 86, 96; Bakersfield Citizens, 124 Cal.AppAth at 1197 and 1208.)
Several basic principles govern this review. "When assessing the legal sufficiency
of an EIR, the reviewing court focuses on adequacy, completeness and good faith
effort at full disclosure." (San Joaquin Raptor, 149 Cal.AppAth at 653, citation
omitted.) "An EIR must include detail sufficient to enable those who did not
participate in its preparation to understand and to consider meaningfully the issues
13
raised by the proposed project." (Laurel Heights, 47 Ca1.3d at 405.) The ErR thus
"must contain facts and analysis, not just the agency's bare conclusions or
opinions." (ld. at 404; Bakersfield Citizens, 124 Cal.App.4th at 1197.) Further,
"[Wjhatever is required to be considered in an ErR must be in that formal report;
what any official might have known from other writings or oral presentations
cannot supply what is lacking in the report." (Laurel Heights, 47 Ca1.3d at 405.)
Failure to comply with these informational requirements is a "failure to proceed in
a manner required by law" and therefore an abuse of discretion. (Save Our
Peninsula Committee v. Monterey County Board of Supervisors (2001) 87

Cal.App.4th 99, 118.)
Although an omission of information does not automatically constitute a

prejudicial abuse of discretion, the error is deemed prejudicial "when the omission
of relevant information has precluded informed decision making and informed
public participation, regardless of whether a different outcome would have resulted
if the public agency had complied with the disclosure requirements." (Bakersfield
Citizens, 124 Cal.App.4th at 1198; Public Resources Code § 21005.)
Use of an erroneous legal standard or assumption, or an erroneous

interpretation or application of the requirements of CEQA by the respondent also
constitutes a failure to proceed in the manner of law. (City of Marina, 39 Ca1.4th
at 355-356, 366.)
III. THE EIR FAILED TO ADEQUATELY ADDRESS POTENTIAL IMPACTS
RESULTrNG FROM SUBSTANTIAL INCREASED USE OF PUBLIC
TRANSIT BY SDSU STUDENTS, FACULTY AND STAFF
The ErR concluded that public transit, and particularly the Green Line
trolley run by MTS, will carry a very substantial share of the transportation
demand generated by the 11,385 new students, 691 new faculty and 591 new staff
14
anticipated by the Master Plan. (AR 15{222} 14233, 14239.) As discussed later,
CSU believes as many as half of the new vehicle commuters to campus will utilize
the trolley instead by 2025. Overall, student, faculty and staff "boardings" at the
SDSU trolley station are projected to increase to 11,624 per day, an increase of
almost 150 percent over the 4,626 daily boardings in 2006/2007. (AR
15{238} 14797.) These are in addition to boardings by non-SDSU affiliated riders,
who constitute 21 percent of the boarders at the SDSU station. (Id.)
Some commenters on the Draft EIR were concerned that these projections
of probable trolley use were unrealistic and resulted in understatement of the
Project's vehicle traffic impacts. (See, e.g., AR 17{263} 16966, 16971, 17043;
19{299} 18588.) SANDAG and MTS' major additional concern was that CSU
responsibly address impacts that could result from this dramatic increase in
ridership on the:transit system, including consideration of appropriate mitigation.
CSU's response to these concerns is stunning in both its arrogance and its
disregard of basic CEQA principles. As a result, the Final EIR fails to adequately
address transit impacts. Indeed, it does not address them at all. It offers only
legally insupportable excuses for its failure to do so. The Final EIR also fails to
provide adequate responses to SANDAG's comments on this issue, in violation of

Public Resources Code § 21091(d) and Guidelines § 15088.
A. The EIR's Forecast of Massive Increases in Transit System Use and

S.ANDAG'sComments
CSU's first clue that transit related impacts were both probable and likely to
be substantial should have been the massive increase in projected transit use itself.
The Green Line trolley system operated by MTS began service to the SDSU
campus in 2005. (AR 15{222} 14224.) In 2006/2007, some 5,987 trolley

boardings were occurring daily at the SDSU station, 79 percent of which (4,726
15
per day) were by students, faculty staff or visitors to the SDSU campus. CAR
15{238} 14797-14798; 17{257} 16557.) The EIR concluded that the Campus
Expansion Project would result in a total of 6,898 additional, SDSU-related, daily
trolley boardings at the SDSU station by 2025, or a total of 11,624 SDSU student,
faculty, staff or visitor boardings per day. This is an increase of almost 150
percent over existing trolley use. Moreover, since only 79 percent of the boarders
at the SDSU station are projected to be SDSU-related riders (and 21 percent

transferees headed to or from other locations), the 11,624 estimate for SDSU-
related boardings does not tell the whole story. Total daily SDSU station
boardings from all sources in 2025 are forecast to reach 14,714. (ld.) The number
of daily boardings also does not accurately reflect actual transit trips to or from the
SDSU location, Since boardings represent only departures from the trolley station,
and not arrivals, the actual number of transit trips starting, ending or transferring
through the SDSU station by 2025 will exceed 29,000 per day. Over 23,000 of
these trolley trips will be attributable to SDSU students, faculty and staff.
If accepted as true, the forecasts in the EIR are certainly good news for area
roadways, which would otherwise bear the additional commuter traffic. The
massive increase in projected SDSU-relatedtrolley ridership, however, raises an
obvious question: what impacts may result, directly or indirectly, from this
increase in transit ridership itself? Certainly a similar magnitude increase in

vehicle traffic would trigger immediate questions about potential effects and the
area roadways' capacity to absorb the traffic. CSU, nevertheless, undertook no
effort to evaluate potential transit-related impacts during preparation of the EIR.
B. Comments on the Draft EIR and CSU Responses
The EIR's failure to address transit-related impacts is particularly egregious
because almost all commenters on the EIR agree achievement of the transit
16
ridership forecast in the EIR will require funding of major improvements to the
existing system by CSU or some other source, as well as a commitment by CSU to
provide additional incentives to students, staff and faculty for increased public
transit use. CSeeAR 17{263}16923, 16925, 16950-16954, 16961; SAR
27 {592 }S22577-S22578.) The flip side of this, of course, is that in the absence of
such funding or other mitigation measures, existing transit facilities will be

overloaded, with resulting impacts on transit facilities themselves and on the
public at large.
SANDAG initially took a problem-solving approach to this issue in
discussions with CSU staff by attempting to negotiate an agreement to fund needed
additional transit system improvements. CAR21 {326}20540-20541.) When these

discussions appeared to be going nowhere, however, SANDAG raised its
concerns, including the issue of transit-system related impacts, in comments on the
Draft EIR. CAR 17{263} 16950-16954.) CalTrans, in a separate comment letter,
also requested that CSU "incorporate a means to identify and disclose its
transportation impacts and mitigation to regional facilities, including ... regional
transit lines." CAR21 {327}20659.) In response to SANDAG's comments, CSU
stated it would not consider transit-related impacts in the EIR, and offered a series
of specious rationales for its failure to do so. CAR 18{264}17158-17159, 17229-
17232.) CSU also added a paragraph to the Final EIR reiterating one of its
rationales for failure to address transit impacts, i.e., the claim that neither
SANDAG nor the City of San Diego had provided CSU with any "criteria" that
could be used "to assess the project's impact on transit service." (AR
18{285} 17816.)
After the close of formal public comments on the Draft ErR, SANDAG
continued to request that transit-related impacts be addressed in the EIR. CAR
17
19{310}18630-18635; 19{299}18569-18570.) CSU simply reiterated the
positions taken in its response to comments on the Draft EIR. (AR

21 {327}20670-20671; see also AR 18{264} 17191-17195.) In an apparent attempt
to buttress the CSU's staff position on the issue, the formal findings and statement
of overriding considerations adopted by CSU at the time of project approval
contain a conclusory purported finding that the project would have "no significant
impacts on transit systems." (AR 19{297}18517.)
C. There Is No Legally Viable Excuse for the ETIR.'sFailure to Address
Transit Impacts
It goes without saying that an EIR must address all significant

environmental effects of the project. (public Resources Code § 21100(b)(1);
Guidelines § 15126.2.) A "significant environmental effect" is defined in CEQA
as a "substantial, or potentially substantial, adverse change in the environment."
(Public Resources Code § 21068, emphasis added.) The lead agency thus may not
await conclusive proof that an impact will, in fact, be "substantial" before

evaluating the potential impact in the EIR. Even where further investigation
shows the impact will, in fact, not be substantial, the EIR must set forth a brief
statement of the reasons for this conclusion. (Guidelines § 15128; Protect the
Historic Amador Waterways v. Amador Water Agency (2004) 116 Ca1.App.4th
1099, 1111; Eureka Citizens for Responsible Government v. City of Eureka (2007)
147 Cal.AppAth 357,376; Mira Mar Mobile Community v. City of Oceanside
(2004) 119 Cal.App.4th 477,493; Citizens to Preserve the Ojai v. County of
Ventura (1985) 176 Cal.AppJd 421,429.) The fact that the lead agency simply
did not wish to investigate or evaluate the potential impact is not an acceptable
excuse for failure to discuss the potential impact in the EIR. As many cases have
noted, CEQA establishes an affirmative duty to investigate and evaluate potential
18
impacts. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus
(1994) 27 Cal.App.4th 713, 726; see also County Sanitation District No.2 of Los
Angeles County County of Kern (2005) 127 Ca1.App.4th 1544, 1597; Robert T
Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311 ["CEQA
places the burden of environmental investigation on government rather than the
public."].} A lead agency may not rely on an alleged paucity of evidence that is the
result of the agency's own failure to actively seek relevant information. (Id.)
The record here discloses four discernable rationales for the Elk's failure to
responsibly investigate potential transit-related impacts. None provide a valid
legal excuse for the ErR's failure to address these potential impacts in the ErR.
1. Transit-Related Impacts are Environmental Impacts
CSU's first rationale is summarized in its statement that "any 'transit'
impacts that may result from the proposed project relating to increased transit
ridership are not subject to CEQA analysis as they are not environmental impacts
recognized under CEQA." (AR 18{264} 17229-17230.) This is simply erroneous
as a matter of law. CEQA requires consideration of all potential environmental
impacts a proj ect may have, whether caused directly or indirectly by the proj ect.
(Guidelines § 15064(d); Bakersfield Citizens, 124 Cal.App.4th at 1204-1205.) An
increase in trolley ridership obviously has the potential to cause a number of
impacts, including increased numbers of persons and the corresponding crowding
on transit vehicles and at terminals, and increases in the number of transit vehicle
trips, with resulting noise, air pollution and activity levels along transit corridors.
These are changes in physical environmental conditions, just as increases in
conventional vehicle traffic constitute changes in environmental conditions, not
mere social or economic impacts, which are exempt from CEQA review.
(Guidelines § 15131(a); see Bakersfield Citizens, 124 Cal.App.4th at 1205-1207
19
[urban decay impacts]; San Franciscans Upholding the Downtown Plan v. City
and County of San Francisco (2002) 102 Cal.App.4th 656,697-698 [EIR upheld
because it analyzed and mitigated secondary environmental impacts resulting from
parking shortages].) Further, if increases in transit ridership exceed existing transit
system capacities, these impacts may trigger significant secondary impacts in the
form of demand-driven construction of new facilities or diversions of existing
transit riders to other transportation modes. For example, ifnew CSU students,
staff and faculty cram existing transit facilities to capacity during peak transit
hours, the resulting delays and deterioration of service are likely to drive existing
trolley users back to other transportation modes. This will, in turn, result in
increased traffic impacts, as well as negate any environmental gains expected from
increases in student, faculty and staff use of the trolley system.
As a final matter, diversion of obtainable transit funds to meet increased
demands at CSU could result in curtailment of service in other areas, or delays or
abandonment of other needed transit projects with resulting consequences for area-
wide traffic and transportation management. Comments made by SANDAG and
MTS explain that funds do not presently exist to fund all desirable improvements
to the regional public transit systems. (AR 19{299} 18584-18586, 18{264} 17191-
17192; 17{263} 16950; SAR 27 {592}S22577-S22578.) SDSU's impacts on
existing transit facilities and users thus may playa significant role in determining
where transit funds are expended and where other priorities must be sacrificed to
maintain adequate levels of service in the region around SDSU. While the purely
economic consequences of increased transit ridership may not themselves
constitute environmental impacts for purposes of CEQA, these funding problems
would likely result in physical consequences to the environment subject to CEQA.

(Bakersfield Citizens, 124 Cal.App.4th at 1205; San Franciscans Upholding the
Downtown Plan, 102 Cal.App.4th at 697-698.)
20
CSU attempted to support its "no CEQA impact" theory with the argument
that Appendix G of the Guidelines does not establish specific criteria for
determining when transit impacts are "significant" for purposes of CEQA. (AR
18{264} 17230; see Protect the Historic Amador Waterways v. Amador Water
Agency (2004) 116 Cal.App.4th 1099, 1110-1111.) Appendix G, however, merely
provides an illustrative, not exhaustive, list of the types of impacts that may
constitute significant environmental effects under CEQA. A lead agency may not
ignore potential environmental effects simply because they are not specifically
described in Appendix G or in the lead agency's own guidelines, or because
specific criteria for evaluating the impact are not prescribed in Appendix G or
some other existing guideline. (Id.) For example, in Bakersfield Citizens, 124
Cal.App.4th at 1204-.1207 the respondent was required to address urban decay
impacts, i.e., physical deterioration of urban commercial areas, although Appendix

G nowhere refers to these types of impacts. Similarly, a lead agency may not rely
on an alleged lack of formal standards or protocols for evaluating an impact as an

excuse for failure to investigate and analyze the impact. (Berkeley Keep Jets Over
the Bay Committee v. Board of Port Commissioners of the City of Oakland (2001)
91 Cal.App.4th 1344, 1367-1371.)
In short, CSU could not turn a blind eye on potential impacts resulting from
increased use of public transit systems on the theory that such impacts are outside
the scope of CEQA.
2. There is No Public Policy Against Identifying and Mitigating

Transit-Related Impacts
CSU also contended it would be "directly contrary to statewide land use and
planning principles" to "require a project proponent to 'mitigate' increased transit
ridership." (AR 18{264} 17230.) This is palpable poppycock. Neither in the
21
administrative record nor in the subsequent litigation has CSU identified any
adopted statute, policy or practice that purports to exempt lead agencies from
mitigating identifiable impacts of their projects on public transit systems. If there .
were such a statewide or regional policy, SANDAG, as the area's regional

planning agency, certainly would be aware of it. It is true that diversion ofvehic1e
riders to transit riders is often viewed as a desirable goal, and even as a form of
mitigation measures for traffic impacts. Neither of these facts, however, entitles a
lead agency to ignore direct or indirect impacts that increased transit use may have
on the environment or on transit systems themselves. Indeed, it is well settled

under CEQA that where a purported mitigation measure may itself cause
environmental effects, those effects must be analyzed and discussed in the EIR.
(Guidelines § 15I 26.4(a)(l)(D); Save Our Peninsula, 87 Cal.App.4th at 130.)
Consideration of potential collateral impacts also cannot be eschewed merely
because these potential impacts result from aspects of a project that are deemed in
and of themselves to be environmentally desirable. (California Farm Bureau
Federation v. California Wildlife Conservation Board (2006) 143 Cal.App.4thI73,
194-196.)
Further, even were it true that CSU could not be required to mitigate transit-
related impacts (it is not), this would not excuse CSU from discussing potential
transit-related impacts in the ErR, or identifying mitigation measures that might be
adopted by other agencies to avoid or lessen the impacts. (Guidelines §§
15126.4(a)(I)(A), 15091(a)(2).) Being the lead agency for the Project did not
entitle CSU to take a parochial view of the Project or pass potentially significant
environmental issues off as somebody else's problem. To the contrary, a lead

agency may not proceed with "regional blinders," but must include information on
potential impacts and mitigation measures which may be useful to any other public
22
agencies which may be concerned with the Project, to say nothing of the general
public. (Citizens of Goleta Valley, 52 Ca1.3d at 573; Laurel Heights, 47 Ca1.3d at
391-392 [discussing purposes ofEIR]; Public Resources Code §§ 21002.l(d),

2106l.)
'~'
3. CSU Cannot Avoid Liability for Deficiencies in the EIR by
Blaming SANDAG for Allegedly Failing to Provide Information

I·
~ CSU's third excuse for failure to address transit-related impacts is a pass-
I
~
the-buck argument that attempts to transfer blame for the lack of discussion in the
e-:
EIR to SANDAG. CSU argues that while SANDAG provided CSU with estimates
••~.'
..•
of increased future transit ridership at the SDSU station, SANDAG expressed no

I "concern" regarding transit system capacity until it submitted comments on the
> Draft EIR and then failed to provide "evidence" that the Green Line trolley system
was already operating near capacity. From this, CSU reasons it was safe to assume
"increased ridership has already been factored in to SANDAG's long range plans
for the system" and that funding to implement these plans is available "through
traditional funding sources at the local, state and federal levels." (AR
l8{264} 17231.)
This argument rather obviously ignores the fact that SANDAG did raise
concerns over impacts to the transit system precisely when it was required to, i.e.,
in comments on the draft EIR. (Guidelines § 15086; AR 17{263} 16950-54.)

Moreover, the record shows that both before and after the Draft EIR was released,
SANDAG vigorously attempted to secure commitments from CSU to fund the
mitigation measures that were believed necessary. (AR 21 {326}20540-20547,
26{467}S22051.) CSU was thus clearly on notice that mitigation in the form of
transit system capital improvements was necessary to accommodate expected
future use levels. When negotiations failed to produce a solution to this problem,
23
.--------- ---
.•.
MTS - the agency actually responsible for operating the bus and trolley systems -
. made clear that serious consequences were inevitable if the effects of predicted
increases in SDSU-related transit trips were not mitigated in some manner. (SAR
27{592}S22577.) In MTS' unambiguous words, "Unfortunately, the existing
trolley and bus services cannot possibly meet this demand." (SAR
27{592}S22577.) On this record, CSU manifestly cannot claim it had no notice of

potential impacts resulting from excess demand on the existing transit system.
CSU also badly mischaracterizes the nature of the information SANDAG

did provide. As SANDAG plainly stated in its comment letter, the project
ridership figures provided to CSU during preparation of the EIR are based on
projected demand, not projected capacity of the transit system. (AR
18{264} 17233, comment R-2-5.) The record does not reflect any effort by CSU to
obtain information from SANDAG (or anyone else) on actual transit system
capacity, either before or after release of the draft EIR. Given the huge increase in
projected ridership, it was incumbent on CSU to make a good faith effort to
investigate and analyze any potential direct or indirect impacts that might result.
Legally, CSU's "just-blame-SANDAG" argument also ignores CSU's basic
responsibility as lead agency for the project and preparer of the EIR. Contrary to
CSU's assumption, it is not SANDAG's responsibility to identify potential impacts
and mitigation measures and document them to the satisfaction ofCSU~ As lead
agency, it is CSU's responsibility to prepare the EIR and to "find out and disclose
all that it reasonably can" in that process. (Guidelines §§ 15050, 15144; Berkeley
Keep Jets, 91 Cal.AppAth at 1370; Citizens to Preserve the Ojai, 176 Cal.App.3d
at 431-432.) CSU's shift-the-blame argument strongly resembles an argument
made by another lead agency respondent and sternly rejected by the court in
Woodward Park Homeowners Association, Inc. v. City of Fresno (2007) 150

Cal.AppAth 683, 725-730. There, the respondent city refused to impose traffic
24
impact mitigation measures on a development proj ect based on the claim that it
had not received what it considered to be adequate information concerning
possible mitigation from CalTrans. The Court Of Appeal found this conduct flatly
illegal, noting, "There is no foundation for the idea that the city can refuse to
require mitigation of an impact solely because another agency did not provide
information." (Id. at 728-729.) There is similarly no foundation for the idea that a
lead agency may forego analysis of a potential impact and potential mitigation
measures because another agency has not volunteered certain information,
particularly where there is no indication the lead agency ever formally asked for
the information.
As a practical matter, a commenting agency often may not spontaneously
provide detailed information that the lead agency believes is necessary to assess an
impact. First and foremost, the commenting agency should be entitled to assume
that the lead agency will carry out its responsibilities as preparer of the ErR and at
least ask for the information the lead agency believes it is unable to locate, and
analyze the relevant information on its own. Second, outside agencies may suffer
from time and staff constraints of their own, and thus be less likely to volunteer
time to help in preparation of the ErR absent some showing that this help is really
necessary. Finally, it may be entirely unclear precisely what information the lead
agency believes It requires, particularly since the lead agency presumably has a far
more detailed understanding of what is involved in the project and its potential
impacts. Whatever the cause, a lead agency cannot blame failure to investigate
and evaluate a potential impact on another agency's alleged failure to provide
relevant information in the first instance.
25
D. CSU Cannot Rely on Its Own Failure to Investigate or Obtain
Relevant Information to Justify a Failure to Address Potential
Transit-Related Impacts
CSU's final rationale appears to be that there is "no evidence" the trolley
system is currently "operating at or near capacity due to SDSU ridership." CAR
18{264} 17231.) This rationale, however, is little more than a variation on the
theory that it was SANDAG's, and not CSU's, responsibility to investigate and
document any potential impacts that might result from substantial increases in
trolley use by CSU students and staff. The argument fails for the same reason. A
lead agency cannot rely on an evidentiary vacuum of its own making as an excuse
for avoiding investigation and appropriate discussion and analysis of a potential

impact in an EIR. Moreover, given the evidence that is in the record, CSU had
more than a reasonable basis for inferring that the existing transit facilities were
not adequate to handle the long term increase in ridership projected in the EIR
without adverse impacts.
CSU's position here is again foreshadowed - and rejected - in Bakersfield

Citizens, 124 Cal.AppAth 1184. There, after unsuccessfully arguing that urban
decay need not be considered under CEQA, the respondent argued that no analysis
was required in the EIR because the record did not contain substantial evidence
that urban decay impacts would actually occur. The Court of Appeal also rejected
this argument, finding the ultimate question was not whether the project would or
would not have such impacts, but whether the agency complied with CEQA's
informational requirements for analysis and disclosure. (Id. at 1207-1208.)
Because the respondent relied on an impermissible legal premise as its rationale

for excluding consideration of potential urban decay impacts, the issue presented
was a legal issue to which the substantial evidence test was inapplicable. (Id.)
26
Here, CSU also does not rely on any actual factual information for its contention
that the project will have no significant impacts related to public transit. It simply
relies on the erroneous legal rationales discussed above and a purported absence of
evidence in the record as to the significance (or insignificance) of potential transit-
related impacts. The argument simply misapprehends who bears the burden of
conducting the investigation and producing information for the EIR. In this case,
the sheer magnitude of projected increases in trolley ridership placed CSU on

notice that potential impacts could occur. Any doubt on this score should have
been eliminated by discussions with SANDAG and comments received on the
Draft EIR and afterward. Bakersfield Citizens and other cases establish that in
such circumstances, CSU cannot bootstrap its own failure to investigate and
analyze potential transit-related impacts and required mitigation measures into a
basis for concluding that no such impacts exist. (Bakersfield Citizens, 124
Cal.App.4th at 1207-08; San Joaquin Raptor/Wildlife, 27 Cal.App.4th 713, 726-
728; Citizens to Preserve the Ojai, 176 Cal.App.3d at 431-432.)
Even was there an adequate evidentiary basis for concluding that no

significant adverse transit-related impacts would occur, CSU would still be
required to disclose the basis for this conclusion in the EIR. (Guidelines § 15128;
Protect the Historic Amador Waterways, 116 Cal.App.4th at 1111.) This
disclosure implicitly requires a statement of valid factual or other legitimate

reasons for concluding the potential impact is insignificant and does not justify
further consideration in the EIR. It cannot be satisfied by recital of the legally
unacceptable excuses offered by CSU in this case. Thus, even were there less
compelling reasons to believe that significant transit-related impacts will result

from the Project unless mitigation measures are identified and funded by CSU or
other responsible authorities, appellants and the public would be entitled to
27
. SANDAGIMTS JOINT OPENING BRIEF
decertification of the EIR and a remand for a genuine investigation and evaluation
of potential transit-related impacts by CSU.
E. The EIR Failed to Adequately Respond to SANDAG's Comments

on the Draft EIR
Under CEQA, a lead agency must provide formal written responses to

comments received on the Draft EIR. (Guidelines § 15088; Margie Cleary v.
County of Stanislaus (1981) 118 Ca.App.3d 348,358.) The response-to-comments
requirement serves as a sort of environmental fail-safe by forcing the lead agency

to realistically address errors or issues that may have been inadequately addressed
in the Draft EIR. "The requirement of a detailed written response to comments
helps to ensure that the lead agency will fully consider the environmental
consequences of a decision before it is made, that the decision is well informed
and open to public scrutiny, and that public participation in the environmental
review process is meaningful." (City of Long Beach v. Los Angeles Unified School
District (2009) 176 Cal.AppAth 889,904; People v. County of Kern (1974) 39
Cal.App.3d 830, 841-841.) Thus, "where comments from responsible experts or
sister agencies disclose new or conflicting data or opinions that cause concern that the
agency may not have fully evaluated the project, ... these comments may not simply
be ignored. There must be goodfaith, reasoned analysis in response." (Berkeley
Keep Jets, 91 Cal.AppAth at 1367, quoting Margie Cleary, 118 Cal.App.3d at 357,
italics in original; Guidelines § 15088(c).)
CSU's responses to SANDAG's comments on the ErR do not demonstrate
good faith or offer reasoned analysis of the legitimate environmental questions raised.
Instead, although lengthy, CSU's responses offer only rationalization and excuses for
failure to meaningfully address the issues of transit-related impacts and other issues
raised in the comments. This is not the "reasoned analysis" required by CEQA. (See
28
Berkeley Keep Jets, 91 Cal.App.4th at 1367; People v. County a/Kern (1976) 62
Cal.App.3d 761, 771-773.)
IV. CSU'S PURPORTED FINDING OF NO SIGNIFICANT TRANSIT-
RELATED IMPACTS IS LEGALLY INSUFFICIENT AND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE
After declaring in the EIR that it was not required to consider transit-related
impacts under CEQA, the CSU Board of Trustees did an about-face at the time of
Project approval and adopted a short purported fmding to the effect that the project
will have ''No significant impacts on transit systems." (AR 19{297}18517.) This
conclusory finding is of no help in curing the deficiencies of the EIR. Indeed,
since the finding is fatally conclusory and wholly unsupported by the evidence in
the record, it provides an additional ground for overturning the Board's decision
and remanding the case for reconsideration.
A. The Purported Finding of No Impact Does Not Excuse Failure to
Address Potential Transit Related Impacts in the EIR
The Board's purported finding of no significant impacts on transit systems

was rather obviously adopted as a last minute further rationalization for the EIR's
failure to address transit impacts. Even were the finding supported by substantial
evidence however (and it is not), it would not be sufficient to excuse the
deficiencies of the EIR. Administrative fmdings are not a substitute for analysis
and public disclosure in an ElR. "Whatever is required to be considered in an EIR
must be in that formal report; what any official might have known from other
writings or oral presentations cannot supply what is lacking in the report." (Laurel
Heights, 47 Ca1.3d at 405.) The excuses offered in the EIR for not evaluating
transit impacts are discussed above. None save the EIR as an informational
document.
29
B. ,The Finding is Legally Deficient on Its Face
It is well settled that valid administrative findings must consist of more than
bare conclusory assertions. Administrative fmdings must be sufficient to disclose
the "analytic route the administrative agency traveled from evidence to action."
(Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11
Ca1.3d 506,515.) Here, the proffered finding is nothing more than a bare
conclusory statement, unsupported by any explanation or reference whatsoever to

supporting facts. Reliance on such conclusory fmdings is itself grounds for
vacating the administrative decision and a remand for reconsideration.
C. The Finding is Not Supported by Substantial Evidence
As a fmal matter, the finding is not supported by any substantial evidence in
the record. The rationales relied on in the EIR itself have already been discussed.
Clearly none of these constitute evidence supporting a conclusion that the project
will have no transit-related impacts. These rationales are simply arguments or
erroneous legal contentions, not evidence. CSU's responses, moreover, make it

clear that no actual effort to investigate and analyze potential transit related
impacts or to determine the capacity limitations of the existing system and

facilities ever took place. CSU cannot rely on a study that was never conducted.
In the proceedings below, CSU cited one additional obscure passage in the
administrative record as evidence that the project will have no transit related
impacts. This "evidence" consists of a single sentence in an economic report
prepared by SDSU/CSU (Appendix Q to the EIR) to the effect that "An estimated
12,000 students, faculty and staff can be accommodated by the SDSU trolley
station." (AR 18{286}18267.) CSU reasons that since the EIR predicts the
expansion project will result in an estimated 11,385 CSU-related trolley boardings

at the SDSU trolley station per day, the quoted statement shows that the project
30
will not cause any exceedance of the capacity of the trolley system. This argument
not only reads too much into the cursory statement at issue, but ignores the larger
issue of whether the massive increase in student/staff ridership forecast by CSU
will have adverse impacts on the transit system, not merely impacts on one
particular transit facility.
Substantial evidence is defined, as "enough relevant evidence and
reasonable inferences from this information that a fair argument can be made to
support the conclusion." (Guidelines § 15384.) Argument, speculation and
unsubstantiated opinion do not constitute substantial evidence. (Public Resources

Code § 21082.2.) "Substantial evidence" has also been described as "evidence of
ponderable legal significance, reasonable in nature, credible and of solid value,

evidence that a reasonable mind might accept as adequate to support a
conclusion." (American Canyon Community Unitedfor Responsible Growth v.
City of American Canyon (2006) 145 Cal.AppAth 1062, 1070; Moss v. County of
Humboldt (2008).162 Cal.App.4th 1041, 1058.)
Here, the conclusory unsupported statement relied on by CSU simply

cannot support the conclusion CSU desires. As an initial matter, the statement is
entirely ambiguous as to what it means to "accommodate" 12,000 students, staff
and faculty. Does this mean 12,000 boardings per day or, more likely, one-way
trips each day, in which case the station will clearly be swamped by the 11,624
daily boardings in the EIR's 2025 forecast? The statement also gives no indication
as to whether this "accommodation" will require improvements or other changes to
the existing station, or other improvements to the transit system as a whole, such as
addition of additional trolleys and increased train frequencies, none of which can
occur without adequate funding. Neither does the statement indicate whether
"accommodation" of students and faculty will impact the transit system's ability to
serve other transit riders, which the EIR indicates constitute a substantial portion
31
(21 percent) of the riders utilizing the SDSU station, to say nothing of the transit
system as a whole. (AR 15{238} 14797.) These are all precisely the type of
questions that CSU should have, but refused to, address in the EIR. It cannot
escape this duty by relying on a single vague and ambiguous statement in a report
focused on issues entirely unrelated to transit impacts.
To determine whether evidence is "substantial," the court must also

consider the evidence in light of the record as a whole, including evidence which
detracts from that relied on by the agency, or shows it to be insubstantial when

viewed in context. (public Resources Code § 21168; Laurel Heights, 47 Ca1.3d at
408; Balsa Chica Land Trust, 71 Cal.App.4th at 503.) Here, the record is replete
with statements by SANDAG and MTS indicating that the existing transit system
cannot support the increased ridership forecast in the EIR without substantial
investment and physical improvements, CAR 19{299}18584-18586,
17{263} 16950; SAR 27 {592}S22577-S22578.) Balanced against this, the isolated,
unexplained, uncorroborated and unsupported conclusory statement in CSU's

economic report cannot be considered "substantial" or "reasonable" evidence of
"solid value." (American Canyon, 145 Cal.App.4th at 1070.)
There are a few other passages in the record where CSU staff addresses the
subject of potential transit impacts. None, however, could be mistaken for factual
evidence that such impacts will be insignificant. Instead, these passages simply
repeat rationales borrowed from the ErR, or reiterate its purported - but entirely
unsupported - conclusions. In the staff report presented to the CSU Board of
Trustees at the time of their decision, CSU staff thus asserted, "The Draft ErR did
not find that the project would result in significant impacts to transit (i.e., bus or
trolley systems)." (AR 19{292} 18389, 18396.) Mere repetition of unsupported
opinions or conclusions does not constitute substantial evidence .
. 32
V. THE EIR'S ANALYSIS OF VEHICLE TRAFFIC IMPACTS IS LEGALLY
DEFICIENT AND DRASTICALLY UNDERSTATES THE ACTUAL
IMPACTS OF THE PROJECT
The deficiencies of the EIR are not limited to its analysis of transit-related
impacts. The EIR also drastically understates vehicle traffic impacts that will
result from the massive increase in student enrollment and related faculty and staff
increases associated with the Project. Unfortunately, analysis of these issues will
require the Court to delve into the details of the methodologies and assumptions
utilized to assess traffic impacts. As the Supreme Court has cautioned, "such
detailed review is necessary in light of the requirement that in reviewing an
administrative agency's determination the court 'must scrutinize the record to

determine whether substantial evidence' supports the agency's decision .... The
often technical nature of challenges to EIR's also requires particular attention to

detail by a reviewing court." (Laurel Heights, 47 Ca1.3d at 408.)
Appellants are also aware of the deference generally afforded to technical
judgments made by a respondent or its consultants in the course of preparing an

EIR. However, as discussed more fully below, this deference does not extend to
palpable errors or distortions that cannot be justified by logic or any substantial

factual evidence in the record. Whether contrived to deliberately understate traffic
impacts or simply the product of carelessness and faulty logic, the errors discussed
.below resulted in major distortion of the EIR's traffic impact analysis and require
decertification of the EIR.
A. The Substantial Analytical Errors in the EIR Are Grounds for

Overturning Certification
It may be assumed CSU will argue that great deference is owed to the
conclusions reached and methodologies and judgments employed by the
33
consultants who prepared the traffic analysis in the EIR. It is true that under the
controlling standard of review, mere differences of opinion among experts over the
scope, methods and conclusions reached are not grounds for invalidating an EIR.
(Eureka Citizens, 147 Ca1.App.4th at 371-372.) The deference afforded purported
expert opinions, however, is not blind deference. Expert opinion constitutes

substantial evidence only where supported by facts or reasonable inferences from
facts. (Guidelines § 15384(b); Public Resources Code § 21082.2(c).) Substantial

evidence also does not include "evidence which is clearly inaccurate or
erroneous." (Id.) A lead agency, therefore, may not rely on purported expert
judgments or opinions which are clearly baseless, rest on entirely unreasonable,
illogical or inconsistent assumptions, or simply "defy common sense." (Gray v.
County of Madera (2008) 167 Cal.App.4th 1099, 1116-1117 [no deference owed
unsupported and illogical conclusions about effectiveness of adopted mitigation

measures]; Woodward Park Homeowners, 150 Cal.AppAth at 30-731 [mitigation
measure based on unsupported "expert" opinion invalid].) Unfortunately,

purported expertise can be used to distort or obscure relevant information as well
as to analyze or elucidate it. When this occurs, it is the duty of the Court to ensure
the integrity of the CEQA process is protected and "stubborn problems" are not
simply "swept under the rug" by obfuscation, artifice or plain error. (Santa Clarita
Organization for Planning the Environment v. County of Los Angeles (2003) 106
Ca1.App.4th 715, 722.)
Two obvious methods of avoiding assessment of proj ect impacts and
necessary mitigation measures are to artificially discount certain impacts based on

unfounded assumptions or inappropriate statistical devices, or to simply exclude
certain types of impacts or sources of impacts from the EIR analysis. (See, e.g.,
San Joaquin Raptor, 149 Cal.App.4th at 661-667 [EIR avoided disclosure of full
34
project impacts by analyzing only purported average conditions rather than peak
production impacts]; Berkeley Keep Jets, 91 Cal.App.4th at 1377-1383 [ErR could
not rely on noise: analysis which failed to adequately consider nighttime noise
impacts on residents].) These are the types of errors committed in the EIR at issue
here.
B. The EIR Made Two Critical Errors in its Calculation of Vehicle
Trips from New Resident Students
The EIR calculated traffic expected to result from new "resident" students
separately from new "non-resident" students. "Resident" students, for purposes of
the traffic analysis, were deemed to include students living in close proximity
(within 0.5 miles) to the SDSU campus as well as those actually living in on-
campus student housing. (AR 15{238}14795.) Based on SDSU's student housing
projections, the EIR assumed that by 2024/25,35 percent of the 11,385 additional
students (3,984) would be "resident" students, and the remaining 65 percent (7,401
students) would be off-campus, "non-resident" students. (AR 17{257} 16341.)
To calculate the number of daily vehicle trips generated by new resident

students, the EIR started with an assumption that each student dwelling unit would
generate up to 4.4 average daily trips ("ADT"). (AR 17{257} 16342.) It then
reduced this rate by 2.8 ADT to account for "trip reductions, which will occur due
to the relocation of students to the campus." (Id.) Finally, it divided the per unit
rate of 1.6 ADT (4.4-2.8=1.6) by the average number of students per unit (2.5) to
get a per student rate of 0.64 ADT (1.6/2.5=0.64). (Id.) Applying the 0.64 ADT to
the 3,984 additional "resident" students, the EIR concluded these students would
generate an additional 2,550 ADT by horizon year 2024/2025. (AR
15{238} 14801.)
35
Subsequently, the EIR deducted 10,920 from the total trip generation
expected from all project components (23,404). (AR 15{328} 14801-02.) This
represents a 47 percent across-the-board reduction in projected vehicle trips to
account for forecasted increases in SDSU related trolley ridership by 2025 and
"the corresponding future shift from vehicle trips to trolley trips that will result in
fewer vehicles on.the roadways." (AR 15{238} 14797-14798.) This reduction,

referred to as the "shift-to-trolley" reduction is based on the EIR's prediction that
by 2025, the number of trolley trips taken by SDSU students, faculty and staffwill
increase by 6,898. (AR 15{238} 14797.)
1. The EIR Double-Counted Transit Reductions for New Resident

Students
Though the EIR provides only a cursory explanation of the methodology

used to calculate resident student trips, the record reveals that while the 47 percent
"shift-to-trolley" discount is the only acknowledged transit discount, it actually
represents a further discount of an already reduced trip rate. (AR 15{238}14798;
17{257} 16343.) Specifically, the EIR's initial assumption that each new resident
student dwelling unit would generate up to 4.4 daily trips included an underlying
discount for transit trips.

The EIR does not clearly explain how it arrived at the initial 4.4 ADT rate.
It offers only that this rate "was based on data contained in the approved College
Community Redevelopment. Plan EIR." ("Redevelopment Plan EIR.") (AR
17{257} 16342.) It provides no citation to or explanation of the Redevelopment
Plan ErR or the project analyzed therein. (Id.) The EIR simply states that "Table
5-14 from [the Redevelopment Plan EIR] indicates a trip rate ranging from 1.3 to
4.4 per dwelling unit depending on the type of resident housing." (AR
17{257} 16342.) There is no discussion of the assumptions relied upon in
36
developing this rate. This alone violates CEQA by failing to provide sufficient
information to allow meaningful assessment of the resident student trip rate. (See
Guidelines §§ 15147, 15148, 15151.) Nevertheless, it might have been harmless

error if the traffic analysis' reliance on the Redevelopment Plan EIR had been
aboveboard. It was not.
Despite the lack of discussion in the traffic analysis, CSU's traffic engineer
has declared his familiarity with the Redevelopment Plan EIR upon which the
traffic analysis relied. (3 CT 829-837.) Thus, the engineer knew (or should have
known) that the referenced table identifying the 4.4 ADT rate is clearly labeled as
including "Reductionsfor Transit/Walking Trips." (AR 5{51}04746.) The EIR
conveniently fails to disclose this fact or the extent of these underlying reductions.
The relevant page of the Redevelopment Plan EIR, submitted by CSU at trial,
reveals an even higher initial rate of6.0 ADT. (3 CT 837.) Based on various
assumptions, the Redevelopment Plan EIR determined that 4.39 of trips generated
by the project analyzed therein would be via car, 0.37 would be via
carpool/vanpool/transit, and 1.24 would be on foot. (Id.) CSU surreptitiously

took the car portion of this split - 4.4 - and passed it off in the EIR as the
maximum number of total trips an on-campus dwelling unit could possibly
generate. (AR 17 {257} 16342.) Then it whittled the number down even further by
taking additional reductions "due to the relocation of students to campus," the
faultiness of which is discussed below, and the 47 percent transit ridership
discount. (Id.)
CSU will likely try to downplay the underlying transit/walking trip

reduction in the Redevelopment Plan EIR rate by arguing it was negligible. In
fact, it was as much as 27 percent ([1.24+0.37]16.0=0.27). CSU may also urge it

was appropriate t.o disregard the Redevelopment Plan EIR's transit assumptions
37
since that EIR was completed before trolley service extended to the SDSU campus.
This argument fails however, as the Redevelopment Plan EIR specifically assumes
"there will be an extension of the San Diego trolley along the I-8 quarter through
the study area." (AR 5{51 }04745.) Regardless, these arguments only distract
from the core issue: CSU concealed a critical assumption inherent in its base ADT
rate for new resident students. Failure to acknowledge this underlying reduction
and passing off the 47 percent transit ridership discount as the only transit-related
discount is an impermissible double-discounting of trips. Moreover, it is a direct
violation ofCEQA's disclosure provisions, which require an EIR to present

relevant information to the public and decision-makers. (Public Resources Code §
21005(a).) Omission of vital information about the assumptions on which the EIR
relied was an abuse of CSU' s discretion "regardless of whether a different

outcome would have resulted." (Id.) CSU had a duty to alert the public and the
decisionmakers that the EIR included two transit-related reductions, not one.
Failure to do so renders the EIR deficient as an informational document. (Friends

of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.AppAth 859,882
[omission of information essential to informed decisionmaking is a prejudicial
abuse of discretion].)
2. . The EIR Erroneously Treated New Residents Students as
Existing Commuters
The second underlying fallacy in the EIR's calculation of new resident
student trips is.the myth that new resident students are somehow also "existing
commuters" who would merely "relocate" to campus as a result of the project.
This is simply not the case.

As explained above, the EIR calculated the number of trips that would be
generated by new resident students using the Redevelopment Plan EIR's rate of4.4
38
ADT and reducing it by 2.8 ADT, just as the Redevelopment Plan EIR had done to
account for "the relocation of students to campus." (AR 17{257} 16342.) While
. this "relocation reduction" may have been appropriate for the project analyzed in
the Redevelopment Plan EIR, it is not applicable to the Campus Expansion Project.
Specifically, the project analyzed in the Redevelopment Plan EIR did not
include any increase in student enrollment. (AR 5{51}04616-18.) Instead, it

relocated existing faculty, staff and students to the redevelopment project area.
(Id; AR 5{51 }04734.) The Redevelopment Plan ErR subtracted 2.8 ADT to
account for this relocation. (AR 5{51 }04745.) There is no justification for
applying the same reduction to the Campus Expansion Project. Doing so ignored
the glaring and crucial distinction between the Redevelopment Plan project and the
Campus Expansion Project: whereas the Redevelopment Plan brought existing
students closer to campus, the Campus Expansion Project will add almost 4,000
new resident students. (AR 15{222} 14210.) By definition, these students are
new; they are not existing students who will be relocated onto or near campus.
Thus, the ErR should have acknowledged the addition ofthese new trips to the
road. Instead, it reduced them by 2.8 ADT citing the mythical "relocation of
students to the campus." (AR 17{257} 16342.)

CSU will counter that the new student trip generation rate, ultimately
calculated as 0.64 ADT, was reasonable simply because it was higher than the 0.41
ADT rate used in the University of California San Diego Master Plan's EIR
("UCSD EIR"). The EIR does not, and cannot, provide any basis to support
application of the 0.41 ADT here. (AR 17{257} 16342.)
At trial, CSU moved to augment the record with a single page from that
ErR's traffic study, not included or discussed in the SDSU Master Plan ErR, which
provides a few paltry tidbits about the methodology used for that study and
39
SANDAGfMTS JOINT OPENING BRIEF
references an "Appendix F" for the trip generation rates. (AR 21 {327}20673.)
Appendix F does not appear in the record. In light of this, there is no evidence of
similarities between the UCSD project and the SDSU Campus Expansion Project
that would justify its use. In fact, there are likely substantial differences. Whereas
the 0.41 ADT rate might conceivably be accurate for UC dormitory residents, the
"resident" student classification used in CSU's ErR includes many students living
in alternate housing types near campus, which differ dramatically from the self-
contained nature ofa dorm. (AR 15{238} 14795.)1 Historically, SDSU students
have preferred off-campus, non-residence halls over on-campus facilities. (AR

15{236} 14720.) While these near-campus residents may walk rather than drive to
and from campus, they are far more likely to generate more than an average of
0.41 daily vehicle trips to other destinations, e.g., the laundromat, shopping, social
events and recreation. Even were there some valid basis for utilizing the ADT
rates in the UCSD EIR for the SDSU analysis, the public and outside public
agencies (and the Court) are not required to speculate what that basis is. There is
also no reassurance that the UCSD EIR's trip rate is free of hidden reductions, like
the transit/walking discount discovered in the Redevelopment ErR, which would
be inapplicable to the SDSU project. (See AR 15{238}14796; 17{257}16342.)
Thus, nothing allows its use as a source for the resident student trip rate.
1 The Project will result in construction of on-campus housing for 2,976 students
by 2025. (AR l5{222} 14257.) Assuming full occupancy of these units, the new
"resident" classification utilized in the EIR traffic analysis would still include
1,008 off campus students living in a variety of housing situations.
40
C. The EIR's Analysis of Non-Resident Student Traffic Increases is
Based on a Patently Faulty Analysis and is Not Supported By
Substantial Evidence
To determine the appropriate trip rate for new non-resident students, the
EIR used actual traffic counts taken at the SDSU campus in November 2006. (AR
15{238} 14796; 17 {257} 16341.) 7,401 of the new students contemplated by
Master Plan are expected to be non-residents. (Id.) By placing road tubes at all
entrances/exits to campus parking areas over a five-day week, the survey
determined that an average of 66,807 vehicles enter and exit the campus each day.
The EIR then divided this daily average by the 2006/2007 non-resident student
headcount (27,047) to get a rate of 2.47 ADT. (Id.) Since this rate is based on
actual counts of all campus parking areas (including visitors, vendors, faculty and
staff), the EIR states that the 2.47 rate accounts for all potential campus-related
trips. (Id.) Application of this 2.47 ADT rate results in a forecast of 18,280 new
vehicle trips per day from non-resident student, faculty, staff and visitors in 2025
from the 7,401 increase in non-resident students. (AR 15{238} 14795-14796,
14801.)
So far, so good. If not the most precise method of forecasting traffic
increases imaginable, the foregoing method is at least reasonable. A problem
arises, however, when the EIR goes on to discount these projected traffic increases
by over 50 percent based on the purported "shift-to-trolley" discount. The "shift-
to-trolley" discount assumes that essentially ale new trolley ridership projected in
the EIR will represent vehicle commuters who convert to trolley use in place of
automobile transit. Using this assumption the ErR projected that increased trolley
2 A 5 percent factor was applied "to account for the fact that some of the shift to
trolley would be from other transit opportunities and not from personal vehicles."
(AR 15{238}14798.)
41
use will reduce vehicle traffic by a whopping 10,920 ADT in 2025, or over half of
the expected total traffic increase of 18,280 attributed to non-resident students,
faculty, staff and visitors, and approximately 47 percent of the total ADT projected
for the Project. (AR 15{238} 14797-14798; 14801-14802.)
The issue here is not the validity of the projected 2.47 ADT trip rate, but the
validity of the "shift-to-trolley" discount in light of the fact that the 2.47 ADT
already included an inherent reduction for trolley-related trips. Thus, subsequent

application of the 47 percent "shift-to-trolley" discount to the total proposed
project impermissibly discounted an already reduced rate. It is undisputed that
substantial numbers of students, faculty and staff were already utilizing the trolley
or other public transportation to commute to campus when the traffic counts upon
which the 2.47 ADT/student ratio were taken. The EIR acknowledges that in
2006, the SDSU trolley station saw an average of 5,982 boardings per day. (AR
15{238} 14797; 17{257} 16557.) Approximately 79 percent of these boardings
(4,726) were determined to be students, faculty, staff or other travelers generated
by SDSU, as opposed to riders merely transferring to another line at the SDSU
station. (AR 15{238} 14797; 17{257} 16557.) This means the 27,047 non-
residents in 2006/2007 were already generating substantial trolley traffic, in
addition to the vehicle traffic documented in the EIR. To be logical and consistent
with its own methodology, the EIR would also have to assume that a similar
proportion of new non-resident students and related faculty, staff and visitors
would also use the trolley as their means of transportation to and from campus.
The ErR could not assume, as it did, that essentially all new non-residents, faculty,
staff and visitors would be vehicle drivers who were somehow magically
persuaded to switch to trolley transportation. Stated in other terms, there was no

substantial evidence to support the assumption that all new trolley riders would be
converts from vehicle use, where, in fact, existing students, faculty and staff
42
already use the trolley lines in substantial numbers, and the ADT trip rate utilized
to project traffic impacts already assumes substantial trolley use by commuters to

the campus.
The impact of this error on the EIR's traffic analysis is substantial. Based
on the formula used in the ErR, the 4,726 daily hoardings recorded in 2006
represent the equivalent of7,482 additional daily vehicle trips to and from campus
that would occur if the Green Line did not exist. 3 Had the EIR actually factored
these saved trips into the trip rate used to forecast traffic increases from non-
resident students, faculty and staff, it would have found a significantly higher per-
student ADT rate. Alternately, CSU could have reasonably, if somewhat
optimistically, claimed a "shift-to-trolley" discount only for those new trolley
riders that represent a proportionate increase in trolley ridership versus vehicle
travel, i.e., the incremental increase in trolley ridership beyond what would be
expected if the ErR had applied the rate for trolley usage documented under the
baseline 2006 conditions to new non-resident students. CSU, however, could not
have it both ways. It could not rely on traffic generation assumptions that already
excluded trolley riders from the calculations, and then further discount the
expected amount of vehicle traffic based on the fact that - surprise - many new
students, faculty and staff would choose trolley transportation instead of
automobile transport in the first instance, precisely as is the case under current
conditions.
3 To "translate transit usage into vehicle trips," the ErR assumed an average of 1.2
persons per vehicle such that 4,726 boardings represent 3,938 one-way traffic trips
C4,726/1.2=3,938). Then it applied a 5 percent factor to account for the fact that
some of the trolley riders converts would have utilized alternate public
transportation rather than automobiles (3,938*0.95=3,741). Then it multiplied this
number by two to convert itto ADT, which is equivalent to 7,482 ADT
(3,741 *2=7,482). CAR 15{238} 14798.)
43
D. CSU's "Fair Share" Mitigation Calculation is Based on the EIR's
Faulty Traffic Analysis and is Not Supported by Substantial
Evidence
The reason for the mathematical acrobatics employed to calculate vehicle traffic
impacts is plain. CSU indisputably has an affirmative duty to mitigate the traffic impacts
of the Campus Expansion Project to the extent feasible. (City of Marina, 39 Ca1.4th at
366-367; County of San Diego, 141 Cal.App.4th at 98-100.) CSU had no desire to
increase its mitigation burden by acknowledging the full extent of the Project's impacts.
CSU ultimately requested just $6,484,000 from the Legislature to "fulfill the mitigation
requirements ofCEQA." (AR 19{303} 18618.) This was after months of negotiations
with the City regarding CSU's "fair share" mitigation obligations (AR 18{264}17165-
17168), during which time the City, SANDAG and Caltrans and others repeatedly
pointed out the flaws in CSU's traffic and circulation assumptions. (AR 19{299} 18568-
18599; 19{310} 18630-18635; 21 {326}20540-20547.) Ultimately, CSU refused to
budge from its figure, which was a striking $15 million less than the City's calculation of
$21,852,000. (AR 18{264} 17151-17153, 17173.) While it is possible for agencies to
have good faith disagreements over "fair share" mitigation obligations, it is not
permissible for a lead agency to minimize its obligations by systematically understating
the severity of the impacts to be mitigated.
This is not an instance of two agencies selfishly sparring for more money. CSU's
ultimate request for funding is simply insufficient "to provide the needed transportation
... facilities for [SDSU] students, faculty and staff," as Mayor Sanders recognized in his
plea with SDSU for additional funding. (SAR 27 {591}S22573.) Moreover, it is not
just those associated with SDSU who will suffer from insufficient funding; the
unaffiliated citizens of San Diego will be equally burdened by substandard transportation

facilities.
44
The City's calculation of its "fair share," which was based on an inherently flawed
and defective traffic analysis, cannot be upheld. (AR 18{264} 17152~) Where, as here,
an EIR's evaluation of traffic impacts is incomplete and, thus, unsupported by substantial
evidence, the lead agency's calculation of the mitigation needed to remedy those impacts
is necessarily deficient. (Woodward Park Homeowners, 150 Ca1.AppAth at 730-731
[BIR's failure to include all impacts roadways in calculation of fee obligation rendered
fee calculation unsupported by the evidence].)
VI. CSU ILLEGALLY DEFERRED MITIGATION OF TRAFFIC IMPACTS
In response to comments from SANDAG and others, CSU listed a new

mitigation measure for traffic impacts in the Final EIR. (AR 18{264} 17237-
17238.) Mitigation Measure TCP-27 purports to require CSU, in "consultation"
with SANDAG and MTS, to develop a Transportation Demand Management

("TDM") program to be implemented by 2012/2013 to "facilitate a balanced
approach to mobility, with the ultimate goal of reducing vehicle trips to campus in
favor of alternate modes of travel." (AR 18{275} 17602.) No further hint is given
as to precisely what measures might be included in the TDM program, or what
results are to be accomplished.
On its face, TCP-27 represents a classic case of unlawful deferred

mitigation. (Communities for a Better Environment v. City of Richmond (2010)
184 Ca1.AppAth 70,92-94; San Joaquin Raptor, 149 Cal.AppAth at 669-671;
Guidelines § 15126A(a)(1)(B).) Courts have held that formulation of the specific
details of a mitigation program may sometimes be postponed pending completion
of further studies or planning efforts. However, such a deferral is permissible only
where the lead agency has identified the concrete measures or types of measures
that will be considered, formally committed itself to implementation of the

measures ultimately selected, and adopted a specific performance criteria or
standards that the mitigation program must satisfy. (See Defend the Bay v. City of
45
Irvine (2004) 119 Cal.App.4th 1261,1275-1277; Rita Gentry v. City of Murietta
(1995) 36 Cal.App.4th 1359,1394-1395.) Mitigation Measure TCP-27 satisfies
none of these criteria. No specific future mitigation actions whatsoever are
identified as potential elements of the plan. No specific goals or performance
standards of any kind are specified. A mere "generalized goal," such as
maintaining the integrity of a habitat area, does not satisfy the requirement for an
actual performance standard. (San Joaquin Raptor, 149 Cal.App.4th at 670.)
Mitigation Measure TCP-27 further commits CSU to virtually nothing beyond

consultation with SANDAG and MTS and formulation of a completely undefined
paper plan.
It is apparent that CSU regarded Mitigation Measure TCP-27 as little more

than an "unnecessary" afterthought and a token sop to SANDAG and MTS. (AR
18{264} 17238.) This, however, does not authorize CSU to disregard basic
principles governing mitigation measures. In its formal findings for Project
approval, CSU acknowledged that traffic impacts were significant and unavoidable
despite the adoption of all feasible mitigation measures and adopted a Statement of
Overriding Considerations accordingly. (AR 19{297}18473-18474, 18522-
18525.) Under these circumstances, however, CSU was obligated to adopt and
implement all feasible mitigation measures available to minimize traffic impacts.

(Woodward Park Homeowners, 150 Cal.App.4th at 724; County of San Diego, 141
Cal.App.4th at 98-101.) The defects of Mitigation Measure TCP-27, therefore,

cannot be dismissed on the theory that the measure is purely gratuitous or mere
surplusage. CSU could not shirk this duty to mitigate traffic impacts to the fullest
extent practical by adopting vague, legally unenforceable mitigation measures that
avoid commitment to real, identifiable mitigation efforts until some time in the
future, if then.
46
~.--------.--
VIL JOINDER IN CITY'S BRIEF
Pursuant to CRC 8.200(a)(5), SANDAGIMTS join in and adopt by reference the

facts and arguments set forth in the City of San Diego's appellate brief filed in this
matter.
VIIL CONCLUSION
As described in this brief, respondent CSU failed to perform its obligations under
CEQA in several important respects. These errors are in addition to those identified in
the separate brief of appellant City of San Diego in this case. The errors were prejudicial
and resulted in a substantial failure by CSU to responsibly address the transportation
impacts of its Campus Expansion Project. If these errors are not corrected, the victims
will be the public, CSU's own students, faculty and staff who will struggle with
unmitigated traffic and transit system impacts, and the appellants and other public
agencies that will be forced to address the future consequences of CSU' s actions. The
decision of the trial court should be reversed, with directions to issue a writ of mandate
directing CSU to vacate its certification of the EIR and approval of the Campus
Expansion Project until such time as CSU has fully complied with CEQA and honestly
addressed all impacts ofthe Project and CSU's responsibilities for mitigating these
impacts.
DATE: Novemberjo , 2010 By: tt/u
. I
i-tr
Philip A. Seymour
THE SOHAGI LAW GROUP, PLC
Attorneys for Petitioners/Appellants
SAN DIEGO ASSOCIA nON OF
GOVERNMENTS and
SAN DIEGO l\1ETROPOLITAN
TRANSIT SYSTEM
47
CERTIFICATION OF WORD COUNT
The text of the Petitioners Opening Brief consists of 13,967 words, including footnotes.
The undersigned legal counsel has relied on the word count of the Microsoft Word 2007
Word processing program to generate this motion. (Cal. Rules of Court, rule
8.204(c)(I).)
DATE: November ?n, 2010 By: rtd~

Nicole H. Gordon
. THE SOHAGI LAW GROUP, PLC
Attorneys for Petitioners/Appellants
SAN DIEGO ASSOCIATION OF
GOVERNMENTS and
SAN DIEGO METROPOLITAN TRANSIT
SYSTEM
1
San Diego Association of Governments, San Diego Metropolitan Transit System, et al., v.
Board of Trustees of the California State University
Court of Appeal, Fourth Appellate District, Division 5
Case No. D057446
SERVICE LIST
John F. Kirk, Deputy General Counsel ATTORNEYS FOR PETITIONERS AND

San Diego Association Of Governments APPELLANTS SAN DIEGO ASSOCIATION OF
401 B Street, Suite 800 GOVERNMENTS
San Diego, California 92101
Telephone: (619) 699-1997
Facsimile: (619) 699-1995
Email: jki@sandag.org
Tiffany 1. Lorenzen, ATTORNEYS FOR PETITIONERS AND

San Diego Metropolitan Transit System APPELLANTS SAN DIJE:GOMETROPOLITAN
1255 Imperial Avenue, Suite 1000 TRANSIT SYSTEM
San Diego, California 92101-7490
Telephone: (619) 231-1466
Facsimile: '(619) 234-3407
Emai1: Tiffany.Lorenzen@sdmts.com
Michael S. Haberkorn ATTORNEYS FOR DEFENDANT AND

Mark J. Dillion RESPONDENT BOARD OF TRUSTEES OF
Danielle K. Morone THE CALIFORNIA STATE UNIVERSITY
Gatzke, Dillon & Balance LLP
1525 Faraday Avenue, Suite 150
Carlsbad, California 92008
Telephone: (760) 431-9501
Facsimile: (760)431-9512
Email: mhaberkorn@gdandb.com
Email: mdillion@gdandb.com
Emai1: dmorone@gdandb.com
Christine Leone, Chief Deputy City Attorney ATTORNEYS FOR PETITIONERS AND
Jan I. Goldsmith, City Attorney APPELLANTS CITY or SAN DIEGO AND
Office of the San Diego City Attorney REDEVELOPMENT AGENCY OF THE CITY
1200 Third Avenue, Suite 1100 OF SAN DIEGO
Telephone: (619) 533-5800
Facsimile: (619) 533-5856
Email: Leonec@sandiego.gov
Email: GoldsmithJ@sandiego.gov
Carey 1. Cooper ATTORNEY FOR DEL CERRO ACTION

Klinedinst PC COTJNCIL
501 West Broadway, Suite 600
Telephone: (619)239-8131
Facsimile: (619) 238-8707
Emai1: ccooper@klinedinstlaw.com
111
San Diego Association of Governments, San Diego Metropolitan Transit System, et al., v.
Board of Trustees of the California State University
Court of Appeal, Fourth Appellate District, Division 5
Case No. D057446
SERVICE LIST
Hon. Thomas P. Nugent TRIAL COURT JUDGE

San Diego Superior Court, Dept. 30
325 South Melrose Drive
Vista, California 92081
Telephone: (760) 201-8030
Clerk of the Court SUPREME COURT OF CALIFORNIA

Supreme Court of California (4 Copies)
350 McAllister Street
San Francisco, California 94102-7303
Telephone: (415) 865-7000
W:\C\192\0 12\00 145367.DOC
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Appellate Court Case No.

IN THE COURT OF APPEAL

SAN DIEGO ASSOCIATION OF GOVERNMENTS and SAN DIEGO

Defendant and Respondent.

OPENING BRIEF OF APPELLANTS SAN DIEGO ASSOCIATION OF

From the Judgment of the Superior Court of the State of California,

THE SOHAGI LAW GROUP, PLC SAN DIEGO ASSOCIATION OF

Attorneys for Petitioners and Appellants

I. IN'fRODUCTION AND SlIMMARY 1

II. STATEMENT OF TIlE CASE 4

1. The Campus Expansion Proj ect 5

3. Traffic and Transportation System Impacts 7

III. TlIEEIR FAILED TO ADEQUATELY ADDRESS POTENTIAL

A. The EIR's Forecast of Massive Increases in Transit System Use and

B. Comments on the Draft EIR and CSU Responses 16

C. There Is No Legally Viable Excuse for the EIR's Failure to Address

1. Transit-Related Impacts are Environmental Impacts 19

2. There is No Public Policy Against Identifying and

3. CSU Cannot Avoid Liability for Deficiencies in the EIR by

D. CSU Cannot Rely on Its Own Failure to Investigate or Obtain Relevant

E. The EIR Failed to Adequately Respond to SANDAG's Comments on

IV. CSU'S PURPORTED FINDING OF NO SIGNIFICANT TRANSIT-

A. The Purported Finding of No Impact Does Not Excuse Failure to

B. The Finding is Legally Deficient on Its Face 30

C. The Finding is Not Supported by Substantial Evidence 30

V. THEEIR'S ANALYSIS OF VEHICLE TRAFFIC IMPACTS IS

A. The Substantial Analytical Errors in the EIR Are Grounds for

1. The EIR Double-Counted Transit Reductions for New

2. The EIR Erroneously Treated New Residents Students as

C. The EIR's Analysis of Non-Resident Student Traffic Increases is

D. CSU's "Fair Share" Mitigation Calculation is Based on the EIR's

VI. CSU ILLEGALLY DEFERRED MITIGATION OF TRAFFIC IMPACTS 45

Appellants in this case are the San Diego Association of Governments,

("MTS"). SANDAG is an association of governmental agencies that includes the

personal or environmental reasons.

University ("CSU") to address serious problems posed by planned expansion of the

California State University campus in San Diego ("SDSU").

CSU unquestionably has its own mission to perform, and it is an important

consideration of potential mitigation measures as it has in this action.

The most fundamental violation ofCEQA at issue concerns CSU's complete

refusing to investigate and analyze these impacts as required by CEQA. These

("Guidelines") § 15088, which provides an additional ground for vacating

assumptions used by CSU's ErR consultants to analyze traffic impacts. Appellants

As a final matter, CSU erred by relying on future adoption of an undefined

resources at its disposal," will be capable of remedying these deficiencies on remand

general public do not suffer the consequences of poor transportation planning or a

denial of responsibility for addressing transportation impacts by CSU. (Laurel

Heights Improvement Association of San Francisco, Inc. v. The Regents of the

II. STATEMENT OF THE CASE

judgment on June 21 and 22,2010, respectively. (7 CT 1688-1690; 1691-1692.)

These appeals are authorized by Code of Civil Procedure § 904.l(a)(2).

1. The Campus Expansion Project

The "Campus Expansion Project" or "Project" at issue in this case involves

facilities and programs to accommodate 35,000 full-time equivalent students

("FTES") by 2024/2025. (AR 15{222} 14239.) This represents an increase of

• Adobe Falls Faculty/StaffHousing project, consisting of348 faculty and staff

housing units located north of Interstate 8. CAR 15{222}14209.)