San Diego, California

IN THE COURT OF APPEAL, STATE OF CALIFORNIA
FOURTH APPEL ATE DISTRlCT, DIVISION ONE
CITY OF SAN DIEGO AND ) Court of Appeal

REDEVELOPMENT AGENCY Case No. D057446
OF THE CITY OF SAN DIEGO
San Diego Superior Court
Case Nos. GIC855643 (JLead Case)
Petitioners and Appellants, [consolidated with Case Nos. GIC
855701; 37-2007-00083692-CU-
WM-CTL; 37-2007-00083768-CU-
v. TT-CTL; 37-200J-00083773-CU-
MC-CTL]
BOARD OF TRUSTEES OF THE

CALIFORNIA STATE
UNIVERSITY
Defendant and Respondent.
Appeal from a Judgment of the

Superior Court of the State of California
County of San Diego
The Honorable Thomas Nugent

APPELLANTS THE CITY OF SAN DIEGO AND
REDEVELOPMENT AGENCY OF THE CITY OF SAN DIEGO'S
OPENING BRIEF
Jan I. Goldsmith, City Attorney

Donald R. Worley, Assistant City Attorney
Christine M. Leone, Chief Deputy City Attorney
Office of the City Attorney
1200 Third Avenue, Suite 1620
San Diego, California 92101-4178
Telephone: (619) 236-6220
Facsimile: (619) 236-7215
Attorneys for Petitioners and Appellants.

the City of San Diego and Redevelopment
Agency of the City of San Diego
TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES iv
STATEMENT OF THE CASE 1
STATEMENT OF APPEALABILITy 3
STATEMENT OF FACTS 3
A. The Parties 3
B. San Diego State University 2007 Campus Master Plan
Revision 4
C. The 2005 Campus Expansion Was Also Challenged 5
D. Several Parties Challenge the Adequacy of the 2005 Campus
Master Plan EIR 6
E. The EIR Certified for the 2007 Campus Master Plan Revision
Has Many of the Same Defects as the EIR for the 2005
.Campus Master Plan 7
F. Challenges to the 2007 Campus Master Plan Revision EIR 8
ARGUMENT 8
1. THE TRIAL COURT ERRED IN FINDING THAT CITY

DID NOT EXHAUST ITS ADMINISTRATIVE REMEDIES
REGARDING RESPONDENT'S OBLIGATION TO
IDENTIFY FUNDING TO IMPLEMENT FEASIBLE
MITIGATION·MEASURES 8
A. The Standard of Review 8
B. City Exhausted Its Administrative Remedies 9
C. The Court Erred In Applying the Exhaustion Doctrine
Because It Would Require City To Take Futile Acts 13
II. RESPONDENT'S FINDING THAT TRAFFIC

MITIGATION WAS INFEASIBLE IS BASED UPON AN
ERRONEOUS LEGAL TNTERPERTATION OF THE CITY
OF MARINA CASE 15
B. Respondent Abused Its Discretion by Failing to
Identify Voluntary Contributions or other Alternatives,
as Required by CIty of Marina, to Ensure
Implementation of Feasible Mitigation " 15
1
~
..
1. The EIR should not have been certified because the

infeasibility findings and statement of overriding
consideration are based upon Respondent's erroneous
intrpretation of City of Marina 16
2. Respondent's interpretation of City of Marina to

support its finding that the traffic mitigation measures
are infeasible is wrong 18
III. AS A RESULT OF RESPONDENT'S IMPROPER

INTERPRETATION OF ITS LEGAL OBLIGATIONS UNDER
CEQA, THE EIR FAILED TO IDENTIFY AND IMPLElviENT
FEASIBLE MITIGATION 21

B. The EIR Is Deficient Because It Failed To Identify and
Discuss Feasible Options To Pay For Mitigation Including
The Capital Outlay Funding Used To Pay For Campus
Expansion Construction 22
1. Respondent has the authority to fund off-campus
mitigation as part of the power and responsibility
conferred on Respondent for construction and
development of state university campuses 23
2. Respondent received money for campus construction
and has discretion and authority to use those funds to
pay for off-campus mitigation 26
3. Implementing mitigation measures with project

construction funds is feasible 28
4. Implementing mitigation measures with bonds is
feasible ' " 30
5. Implementing mitigation measures by altering the
scope of the project is feasible 32
IV. THE EIR FAILS AS AN INFORMATIONAL DOCUMENT 32
v. THE COURT ERRED IN DENYING CITY'S REQUEST FOR
JUDICIAL NOTICE FOR DOCUMENTS RELATING TO
RESPONDENT'S BUDGET PROCESS 34
B. The Court Erred By Denying City's Request for Judicial

Notice of the CSU and State Budget Documents Because
They Are Necessary To Determine Whether Respondent
Complied With CEQA and City of Marina 34
11
c. The Budget and Finance Documents Are Relevant and Proper
for Judicial Notice 37
CONCLUSION 40
CERTIFICATE OF COMPLIANCE 43
,
".j
111
STATEMENT OF THE CASE
The City of San Diego and the City of San Diego Redevelopment
Agency (collectively referred to herein as "City") challenge an
environmental impact report prepared by the Board of Trustees of the
California State University for the San Diego State University (SDSU)
campus. The EIR concerns Respondent's plan to expand the campus
including six new or expanded building sites as well as an increase in
enrollment to 35,000 students (Campus Expansion Project). The planned
expansion will have significant effects on the physical environment in
San Diego where SDSU is located. City challenges Respondent's decision
to certify the EIR despite the remaining, unmitigated effects as an abuse of
discretion under the California Environmental Quality Act (Pub. Resources
Code § 21000 et seq.) (CEQA).
The Campus Expansion Project is a twenty-year development plan
of unprecedented, controversial, and dramatic proportion that will extend
the SDSU campus facilities north across Interstate 8 for the first time in
history. The EIR created to address the effects of the Campus Expansion
Project on the surrounding community establishes numerous significant and
unmitigated traffic impacts. The EIR failed to disclose, discuss and
implement feasible mitigation for these traffic impacts. This deficiency is

primarily due to Respondent's narrow and disingenuous reading of the
California Supreme Court case City of Marina v. Board of Trustees of the
California State University (2006) 39 Ca1.4th 341 (City of Marina).
Respondent contends it has satisfied its CEQA obligations to ensure
implementation of feasible mitigation to pay for off-site mitigation by the
singular act of making a request for funds from the State Legislature even if
there are other funding sources available to Respondent for mitigation.
Respondent does not discuss or disclose the multiple other funding sources
1
to make voluntary payments for the identified mitigation but instead
determines the mitigation is infeasible and approved the project.
Less than five years ago, Respondent was here claiming that it was
"legally constrained" from complying with CEQA. More specifically,
Respondent claimed that it could not mitigate certain impacts because they
were outside the campus boundaries. The Supreme Court was clear:
Respondent must comply with CEQA just like all other developers and
cannot approve a project unless it ensures implementation of feasible
mitigation. Respondent now uses that very decision which was intended to
clearly confirm Respondent's obligations to mitigate pursuant CEQA, to
once again, limit and constrain its obligations to take responsibility for the
environmental impacts its campus expansion plans create. Respondent now
agrees that it has an obligation to mitigate outside campus boundaries,
however, its new "constraint" is the Legislature. Respondent argues that
because it cannot "guarantee" funding from the Legislature (while ignoring
all other potential sources of funding), the mitigation to address the
identified traffic impacts is infeasible. This limitation is self-created,
unjustified and unfair. While Respondent seems able to fmdmoney to fund
campus expansion, it consistently claims that money is not available to
mitigate for adverse effects to the communities and on the environment
surrounding its campuses. And so local entities are once again required to
. ask the Court to direct Respondent to meet its obligations under CEQA.
The question before the Court is whether Respondent has properly
certified the EIR and, on that basis, approved the Campus Expansion
Project. City contends Respondent's decision must be vacated because the
approval depends on an erroneous legal assumption that City of Marina
limited its obligations under CEQA to disclose and implement feasible

mitigation measures. City challenges Respondent's finding that mitigation
measures are "infeasible" because Respondent cannot guarantee it will
2
receive the exact type of funding from the Legislature, and that, based upon
this finding, overriding considerations justify certifying the ElR and
approving the Campus Expansion Project despite the remaining
unmitigated effects. The legal insufficiency of the EIR coupled with
Respondent's refusal to accept its duty to mitigate significant off-site
impacts causes the City, Agency and the surrounding community to either
incur excessive financial expense or accept extensive deterioration of the
environment. Respondent's actions in approving the Campus Expansion
Project and certifying the EIR without complying with the requirements of
CEQA is a prejudicial abuse of discretion, which mandates the setting aside
of the decision to certify the ElR.
STATEMENT OF APPEALABILITY
This appeal is from the judgment of the San Diego County Superior
. Court and is authorized by the Code of Civil Procedure, section 904.1,
SUbdivision (a)(l).
STATEMENT OF FACTS
A. The Parties
Appellant, City of San Diego, is a charter city, organized under the
laws of California. The areas of proposed development to San Diego State
University lie within the geographic limits of the City of San Diego.
Appellant, City of San Diego Redevelopment Agency, is the implementing
agency for the Campus Expansion Project. A Redevelopment Agency is
generally recognized as a separate legal entity from the city that establishes
it. County of Solano v. Vallejo Redevelopment Agency (1999) 75

Cal.App.4th 1262, 1267. The Agency oversees the regional plan for the
College Area in which San Diego State University is proposing
development and is a responsible agency for purposes of CEQA.
Appellant, SANDAG, is a consolidated, regional agency with
numerous statutory responsibilities, many of them related to transportation
3
·and transit. Appellant, Metropolitan Transit System (MTS), is a public
agency responsible for operation of the public transit system serving SDSU
1
including light rail transit (tro ey) and buses.
Respondent, the Board of Trustees of the California State University,
is responsible under California law for the administration, management and
control of the California State University system, including the San Diego
State University campus. Respondent, as lead agency, took the action of
certifying and approving the fmal Environmental Impact Report for the
Campus Expansion Project. Real Party in Interest, San Diego State
University; an undergraduate and graduate university in San Diego County,
is the project's developer and sponsor.
B. San Diego State University 2007 Campus Master Plan
Revision
The Project is located in and around the San Diego State University
campus, in the City of San Diego, approximately ten miles east of
downtown San Diego; and is located within the College Area and Navajo
Community Planning Area of the City of San Diego. AR 15:232:14608.
The proposed Campus Expansion Project is the adoption and
subsequent implementation of the SDSU 2007 Campus Master Plan
Revision. AR 15:222: 14209. The EIR states that the Master Plan Revision
will enable SDSU to meet projected increases in student demand for higher
education, as well as further enhance SDSU's status as a premier
undergraduate, graduate and research university. Id. The stated objective
of the proposed project will be to provide a framework for implementing
SDSU's goals and programs for the campus by identifying needed
buildings, facilities, improvements and services to support campus growth
and development from the current SDSU enrollment of25,000 full-time
1 Pursuant to Cal Rules of Ct 8.200(a)(5), City joins and incorporates
the briefs and arguments of Appellants SANDAG and MTS.
4
equivalent students (FTES) to new Campus Master Plan enrollment of
35,000 FTES by the 2024/25 academic year. Id.
The Campus Expansion Project has multiple development
components, to be constructed in phases, which will result in significant
traffic impacts to the streets and freeways in the area.'
C. The 2005 Campus Expansion Was Also Challenged
From January 18, 2005 to March 18,2005, Respondent circulated a

Draft Environmental Impact Report for the 2005 Campus Master Plan
(2005 DEIR). AR 1:1:00024,4:22:03809,5:29:04142. The City and
Agency, by and through their agents, together with numerous other
concerned parties provided oral and written comments to Respondent
outlining the deficiencies in the 2005 DEIR. AR 3: 17:02088-02095,
5:29:04133-04134. From March 2005 through September 2005, the City
and Agency provided oral and written comments explaining the failures of
the 2005 DEIR and the subsequently circulated Final Environmental Impact
Report (2005 EIR). AR 3:17:02l31, 3: 17:02106-02110,3: 17:03142-
04154,5:34:04202-04206,5:38:04273-04274, 5:43:04334,5:43:04350-
04359. These comments repeatedly raised the issues related to failures in
the traffic reports, analysis of alternatives and refusal to pay for off-site
mitigation. Id.
On July 20,2005, the Board of Trustees held a public hearing at
which concerned community members aired their comments and
misgivings regarding the 2005 DEIR. AR 5:36:04234 and AR 5:34:04181,
5:34:04201. In light of the large volume of opposition generated at the
hearing, Respondent voted to hold off on project approval for an additional
two months, during which the Board maintained it would consider project
alternatives. AR 5:43:04350. In addition, in an effort to mediate and
2 See Opening Brief filed by MTS and SANDAG setting forth the
unmitigated traffic impacts.
5
achieve settlement of the disputes, the Board agreed to the formation of two
ad-hoc committees consisting of representatives from all affected parties.
Id. In spite of Respondent's promise to forestall approval to certify the
2005 EIR and pursue additional investigation, Respondent paid no heed to
its promises to discuss alternatives with area residents, businesses, or City
and Agency officials. See generally, AR Tabs 36 through 39, which do not
reflect additional meetings, analysis or investigation prior to final approval
of the 2005 EIR. Instead, Respondent docketed the issue for approval and
certification of the 2005 EIR at the September 20,2005, meeting of the
Commission on Campus Planning, Building and Grounds in Long Beach,
California, a full two weeks ahead of the first meeting of the ad-hoc
committees. AR 5:43:04387.
Despite the overwhelming, significant and impassioned public
testimony to its latent legal and social defects, as well as repeated requests
from community members to allow the ad-hoc committees to meet before
taking final action, Respondent certified and approved the SDSU Campus
Master Plan Revision on September 21,,2005. AR 5:43:04349-04350,
5:43:04359.
D. Several Parties Challe.!!ge the Adequacy of the 2005
Campus Master Plan EIR
On October 20,2005, the City and Agency filed a petition under

CEQA challenging the decision of Respondent to approve the 2005
Campus Master Plan Revision and certify the corresponding EIR. (3 CT
636-651.) After the City and Agency filed their opening briefs, Respondent
voluntarily agreed to set aside its prior certification of the EIR and approval
of the Project through a peremptory writ of mandate. (3 CT 630-633.)
According to Respondent, the California Supreme Court's decision in City
of Marina v. Board of Trustees of the California State University was the
primary reason the writ was necessary to set aside its prior certification of
the EIR and approval of the Project. Id. The court granted judgment on
6
September 1, 2006, issuing a peremptory writ of mandate to direct the
Respondent to set aside the certification of the EIR and approval of the
. Project. ld. The preemptory writ required Respondent to withdraw the
project approval and decertify the 2005 ElR. The trial court entered a
peremptory writ of mandate and final judgment setting aside Respondent's
certification of the EIR and its approval of the 2005 Master Plan. The trial
court also retained jurisdiction to entertain a subsequent writ to determine
Respondent's eventual compliance with CEQA and the requirements set
forth in City of Marina.
E. The ErR Certified for the 2007 Campus Master Plan
Revision Has Many of the Same Defects as the EIR for the
2005 Campus Master Plan
The Draft Environmental Impact Report (DEIR) for the SDSU 2007
Campus Master Plan Revision was circulated for review from June 12,
2007, through July 27,2007. AR 27:261 :16913. Again the City and
Agency, by and through their agents, together with numerous other
concerned parties provided oral and written comments to Respondent
outlining the deficiencies in the DEIR. See generally AR 17:Tab 263; AR
17:263:16955-16960, 17:263:16961-16964, 17:263:16965-16967,
17:263:16968·-16973,17:263:16974-16976, and 19:310:18630-18635.
These comments repeatedly raised the issues related to failures in the traffic
reports, failure to identify appropriate mitigation measures and the
impropriety of Respondent's position that it had complied with the City of
Marina case requiring Respondent to pay for identified mitigation
measures. Id. Despite numerous letters from residents and government
officials, including Senator Christine Kehoe, Mayor Jerry Sanders, and then
candidate now sitting Counci1member Marti Emerald requesting a
postponement of the certification (AR 19:309:18628-18629,19:307:18626,
19:310:18630-18635), Respondent approved. the 2007 Campus Master Plan
7
Revision and certified the final Environmental Impact Report (EIR) on
November 14,2007. AR 19:303:18616-18619.
F. Challenges to the 2007 Campus Master Plan Revision EIR
On December 14,2007, the City and Agency filed a Petition

challenging the Campus Expansion Project EIR certification and related
approvals. Separate petitions challenging the Campus Expansion Project
were filed by SANDAG and MTS on December 14,2007. On June 10,
2009, Respondent filed a Motion to Discharge the Preemptory Writ of
Mandate entered in 2006. 2 CT 475-476. All cases were consolidated into
one action.
After a one day bench trial on the matter, thecourt denied the
Petitions and granted the Motion to Discharge. (6 CT 1553-1585.) City
filed objections to the Proposed Statement of Decision (PSOD) on January
27,2010. (7 CT 1586-1596.) Other petitioners also filed objections to the
PSOD. (7 CT 1597-1603.) On February 10,2010, Respondent filed a
response to City's objections. (7 CT 1612-1621.)· On February 11,2010,
the trial court entered the final Statement of Decision (SOD) without
change from the PSOD. (7 CT 1622-1654.) The trial court entered final
judgment on March 26,2010. (7 CT 1655-1659.) Judgment was entered
on April 23,·2010. (7 CT 1660-1668.)
ARGUMENT
I. THE TRIAL COURT ERRED IN FINDING THAT CITY DID
NOT EXHAUST ITS ADMINISTRATIVE REMEDIES
REGARDING RESPONDENT'S OBLIGATION TO
IDENTIFY FUNDING TO IMPLEMENT FEASIBLE
MITIGATION MEASURES
A. The Standard of Review

The appellate court determines whether a trial court correctly
. decided that an applicant has exhausted its administrative remedies by
applying the de novo standard of review. Sierra Club v. City of Orange
8
(2008) 163 Cal.App.4th 523,536; see also Center for Biological Diversity
y. County of San Bernardino (2010) 185 Cal.App.4th 866, 890.
B. City Exhausted Its Administrative Reme~~lies
-During the trial court proceedings, City argued that compliance with
CEQA and City of Marina required Respondent to take more action to
determine whether mitigation measures identified as necessary to avoid
environmental impacts would be implemented. (3 CT 728-734; 5 CT 1173-
1175.) City argued that Respondent had a duty under CEQA, like other
developers, to ensure funding for that mitigation, or at the very least
disclose other potential funding sources. (3 CT 792; 5 CT 1178.)
Respondent argued that its sole obligation under CEQA to implement
mitigation measures outside campus boundaries was to ask the Legislature
for the funds, and that it had no further obligations. (4 CT 866, 868, 939-
940; 6 CT 1413-1414; 2 CT 462.) The parties' conflicting interpretation of
this requirement was the central issue raised by the City of San Diego, the
Redevelopment Agency of the City of San Diego, Caltrans, the
Metropolitan Transit System, SANDAG, former and present City Council
members, the Mayor, and many private citizens during the administrative
proceedings.
The trial court in the SOD held that City failed to raise these issues
during the administrative proceedings and thus, the Court did not consider
City's evidence or argument in its decision. (7 CT 1633:16-28 - 1634:1-2.)
City contends there was sufficient evidence demonstrating that this issue
was raised, thus, the trial court erred in determining City had not exhausted
its administrative remedies.
The CEQA review and comment process is designed to allow the
public to test the sufficiency of the agency's environmental evaluation.
9
CEQA Guidelines3§§ 15200, 15204. The public agency is then given an
opportunity to respond by correcting flaws, filling in missing facts and
amplifying its analysis. The essence of the exhaustion doctrine is to give
the agency an opportunity to receive and respond to articulated factual
issues and legal theories before its actions are subjected to judicial review.
Woodward Park Homeowners Association v. City of Fresno (2007) 150
Cal.App.4th 683, 712; Coalition for Student Action v. City of Fullerton
(1984) 153 Cal.AppJd 1194, 1198. The exhaustion doctrine allows
agencies the opportunity to decide matters within their expertise, respond to
objections, and correct any errors before the Court intervenes. Napa
Citizens for Honest Gov 't v. Napa County Bd. Of Supervisors (2001) 91
Cal.App.4th 342,384. Courts only require that the issue was raised in
some form. San Joaquin Raptor/Wildlife Rescue Ctr. v. County of
Stanislaus (1994) 27 Cal.App.4th 713, 735, fn. 10; Save Our Residential
Env't v. CityofW Hollywood (l992) 9 Cal.App.4th 1745, 1750; Kings
County Farm Bureau v. City of Hanford (1990) 221 Cal.AppJd 692, 734
fn. 13. In Woodward Park, the Court found that letters which "capture the
essence of [the] issue" is sufficient for the doctrine of exhaustion.
Woodward Park Homeowners Association v. City of Fresno, 150
Cal.App.4th at 712. The determination of whether the alleged grounds for
a project's noncompliance with CEQA were adequately raised turns on
whether the agency was apprised of the basis for the challenge in a way that
gives it an opportunity to respond by either correcting any errors it has
made or by showing why it has not erred. State Water Resources Control
Ed. Cases (2006) 136 Cal.App.4th 674, 795.
3 The term "CEQA Guidelines" refers to the regulations codified in

title 14, section 15000 et seq. of the California Code of Regulations, which
have been "prescribed by the Secretary of Resources to be followed by all
state and local agencies in California in the implementation of [CEQA]."
(CEQA Guidelines § 15000.) .
10
The SOD relies on City of Walnut Creek v. County of Contra Costa
(1980) 101 Cal.App.3d 1012, 1019 for the legal standard that City has
failed to exhaust its administrative remedies. The standard used in City of
Walnut Creek is the incorrect legal standard to use in this case. The 1980
City of Walnut Creek case was distinguished by the 2001 case of Napa
Citizens for Open Gov't v. Napa County Board of Supervisors (2001) 91

Ca1.App.4th 342,384-385. In City of Walnut Creek, the City argued that
the project was violative of the City General Plan. In the litigation, the City
argued that the project was violative of the County General Plan. The
Court in the City of Walnut Creek case determined that this new issue was a
"shadow-play" by the City, which failed to give the County notice ofthe
issue before City filed litigation. The Napa Citizens case distinguished the
exhaustion requirements described in City of Walnut Creek. In City of
Walnut Creek, the City raised new issues and failures under a completely
different document and plan. The Napa Citizens case distinguished those
instances, which raise completely new and separate issues, as opposed to

those arguments that are "identified" at the administrative level even if not
expressly laid out in detail. Napa Citizens at 384-385. The Napa Citizens
court held that once an issue is "identified", the burden shifts to the other
party to determine how to fix the problem. Napa Citizens at 385-386. In
this case, funding alternatives were clearly "identified" by all petitioners,
and Respondent was on notice of the issue. Based upon Napa Citizens,
Petitioners met their burden of exhaustion.
CEQA only requires that a party raise an objection, but requires the
agency drafting the environmental document to fmd the solution. The
evidence in the record clearly shows that Respondent was properly apprised
of the fact that its position with respect to City of Marina and its funding
obligations under CEQA was an issue. On numerous occasions, City and
11
others objected to Respondent's interpretation of the City of Marina case
and stated that it should be required to guarantee mitigation funding. AR
17:263:16961-16964; 21:323-20375; 26:464:S22043; 27:556:S22383;
27:557:S22385-22386; 27:564:S22430~22432; 27:582:S22498;
27:595:S22593; AR 21:323:20375; 26:461:S22032; 26:520:S222l8; .
27:566:S22333-22435; 27:566:S22333-22435; AR 21 :327:20579-20580.
None of this evidence was considered by the trial court in its SOD, despite
City's request. 4
It was then Respondent's duty and responsibility to respond to those

objections, correct any flaws or provide additional analysis. It was not
City's responsibility to do an analysis of all funding options Respondent
mayor may not have. The financial process and funding that may be
available is within Respondent's expertise. As will be discussed below,
Respondent did not provide any response or additional information
regarding funding based upon its statewide policy position to interpret City
of Marina for the proposition that is legal obligations to mitigate
environmental impacts outside campus boundaries was limited to a sirigle
request to the Legislature. This is the position that was presented in
response to all comments and objections made during the public comment
period and within the fmal EIR. AR 18:264:17149-17151. Respondent's
made a decision based upon the expertise of its own budget and funding
process and procedures as well as advice from its staff and attorneys. AR
18:264: 17150. Respondent was on notice of the issue and had the
opportunity to address it during the administrative process. Respondent's
4 The PSOD issued on January 13, 2010, does not correctly cite to all
the evidence City offered on exhaustion. This error was addressed in City's
Objections to the Proposed Statement of Decision, and City requested the
Court consider the evidence cited by City and revise the PSOD accordingly.
(7 CT 1588-1592.) The Court entered the final Statement of Decision
without change. (7 CT 1622-1654.)
12
decision to ignore City's objections does not preclude City from raising
these issues in this litigation.
C. The Court Erred In Applying the Exhaustion Doctrine

Because It Would Require City To Take Futile Acts
The failure to pursue administrative remedies dose not bar judicial
relief where it would be futile to pursue the remedy.' Jonathan Neil &
Assoc., v. Jones (2004) 33 Cal.4th 917, 936. In order to invoke the futility
exception, a plaintiff must show that the agency "has declared what its
ruling will be on a particular case. Id., quoting Sea & Sage Sea & Sage
Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412,418. A
plaintiff need not pursue administrative remedies where the agency's
decision is certain to be adverse. Doster v. County of San Diego (1988) 203

Ca1.App.3d 257, 26l.
The trial court concluded that City cannot raise arguments regarding
other methods to fund or implement mitigation measures or alterations to
the project because it was not raised during the administrative proceedings .
. (7 CT 1633:16-28 - 1634:1-2.) If, however, City has a duty to propose

sources of alternative funding; then Respondent must have a duty to
respond to those proposals. The duties must be complimentary. Yet, the'
record is clear that Respondent expressly rejected that duty. (3 CT 729:7-
22; 730:1-3; 5 CT 1325:13-1326:27; 1326:10-19; AR 18:264:17159;
20:322:20059; AR 20:322:20060; 18:264:17160; 19:297:18466; AR

20:322:20060; 19:300: 18603; 21 :327:20874-20877; AR:26:472:S22073; 3
CT 797:3-9; 803:l3-l8.) Imposing a duty on the City to propose sources of
alternate funding without imposing the predicate duty on Respondent, or as
here, "Respondent's outright rejection of that duty, would require City to
engage in futile acts. City does not have a legal duty to engage in futile
acts at the administrative leveL City and County of San Francisco v.
International Union of Operating Engineers, Local 39 (2007) 151 Cal.

App.4th 938,947; Imagistics Intern., Inc. v. Department of General
13
Services (2007) 150 Cal.App.4th 581,590 [futility exemption appropriate
when litigant can show agency has predetermined the issue.]
The record is clear that Respondent would not have considered and
analyzed other potential funding sources had the City made more specific
requests during the administrative proceeding. It is equally clear that
Respondent did not consider adjusting the scope of the on campus projects
to lessen the impact off campus which may have negated some of the
severity of the impacts and lessened the need for mitigation. After City of
Marina, Respondent made a statewide policy decision to interpret its
CEQA obligations requiring implementation of feasible mitigation as only
requiring Respondent to request funding through the normal budget
process. AR 18:264:17159; 20:3.22:20059. Respondent knowingly
implemented a policy whereby it "requests" funds from the Legislature for
off-campus mitigation, but proceeds with the implementation of the campus
plan whether or not it receives any funding. AR 20:322:20060;
18:264:17160; 19:297:18466. Respondent's decision to not pursue
alternative funding for mitigation is a calculated policy decision, which was
expected to be challenged in Court. AR 20:322:20060; 19:300:18603;
21 :327:20874-20877. While multiple parties objected to this interpretation
and requested that Respondent do more, in particular, provide some
guarantee of funding, Respondent never changed its position from this
statewide policy. In fact, in response to City's disagreement with
Respondent's interpretation of City of Marina was that it is "University's
interpretation [and] ... There is nothing ... the City can do about that. .. " .
AR:26:472:S22073. There was no attempt by Respondent to consider other
funding because it had already made a determination it did not have to.and
it did not intend to change that position.
Thus, requiring City to take an action that Respondent admittedly
would not consider or respond requires a futile act.
14
II. RESPONDENT'S FINDING THAT TRAFFIC MITIGATION
WAS INFEASIBLE IS BASED UPON AN ERRONEOUS
LEGAL INTERPERTATION OF THE CITY OF MARINA
CASE

The reviewing court conducts an independent or "de novo" review
of questions of law. City a/Marina, 39 Cal.4th at 355; 20th Century Ins.
Co. v. Garamendi (1994) 8 Ca1.4th 216,271; Connerly v. State Personnel
Bd (2006) 37 Ca1.4th 1169, 1175. In conducting independent review, the
appellate court is not bound by the interpretation of construction that the
trial court gave to the law in question. 20th Century Ins. Co. v. Garamendi,
8 Ca1.4th at 271. De novo review of legal questions is also consistent with
the principle that, in CEQA cases, '" [t]he court does not pass upon the
correctness of the EIR's environmental conclusions, but only upon its
sufficiency as an 'informative document. '" Laurel Heights Improvement
Assn. v. Regents of University of California (1988) 47 Ca1.3d 376,392,
quoting County of Inyo v. City of Los Angeles (1977) 71 Ca1.App.3d 185,
189.
B. Respondent Abused Its Discretion by Failing to Identify
Voluntary Contributions or other Alternatives, as
Required by City of Marina, to Ensure Implementation of
Feasible Mitigation
Under the proposed Campus Expansion Project, there will be

significant impacts to multiple intersections, street segments, freeway
ramps and freeway mainline segments. AR 18:265:17501. While
Respondent does suggest a number of mitigation measures to address the
identified impacts, Respondent claims that the mitigation measures are
infeasible because Respondent cannot assure funding will be received from
the state to pay for the mitigation. Respondent's position that its duty to
implement mitigation measures is discharged by a single request to the
15
.~.. .
State Legislature is a misreading and misinterpretation of the City af

Marina case. Respondent's project has been identified to cause significant
impacts on dozens of traffic and roadways. The cost to address these issues
is over $20 million dollars. Respondent's decision to continue construction
of its project without its commitment to ensure the enforcement of the
identified mitigation measures based upon its erroneous interpretation of

City of Marina is an abuse of discretion.
1. The EIR should not have been certified because the
infeasibility findings and statement of overriding
consideration are based upon Respondent's erroneous
interpretation of City of Marina.
Before a public agency may approve a project for which the EIR has
identified significant effects on the environment, CEQA requires the public
agency to mitigate or avoid the identified impacts and to discuss feasible
methods of mitigation. City of Marina, 39 Ca1.4th 350; Pub. Resources
Code §§ 21002,21002.1, 21081, 21100(b)(3), 21151; CEQA Guidelines §

15126.4. When an agency fmds that mitigation is infeasible, the agency
must also find that the specific overriding economic, legal or social,
technological or other benefits of the proj ect outweigh the significant
effects on the environment. City af Marina, 39 Ca1.4th 350. The fmdings
constitute the principal means chosen by the Legislature to enforce the
state's declared policy "that public agencies should not approve projects as
proposed if there are feasible alternatives or feasible mitigation measures
available which would substantially lessen the significant environmental
effects of such projects." Id.

In this case, the Campus Expansion Project will result in significant
impacts to fifteen off-site intersections, eight street segments, one freeway

ramp meter, and four freeway mainline segments. AR 19:297:18465. The
EIR identifies specific mitigation measures for each of the impacts (AR
16
19:297: 18466-18473) and states that, in compliance with City of Marina,
Respondent has requested "funding from the state Legislature to pay its
fair-share of the mitigation costs associated with the identified significant
impacts." AR 19:297:18465, AR18:264:17159-17160. Respondent
asserts, however, that "because CSU cannot guarantee that its request to the
Governor and the Legislature for the necessary mitigation funding will be
approved, ... or that the funding will be granted in the amount requested, or
that the public agencies will fund the mitigation improvements that are
within their responsibility and jurisdiction, the identified significant
impacts are determined to be significant and unavoidable." AR
19:297:18466, 19:297:18473-18474. Based thereon, Respondent finds that

"specific economic, legal, social, technological, or other considerations
make infeasible the alternatives identified in the EIR and the identified
transportation/circulation and parking impacts are thereby acceptable
because of specific overriding considerations." AR 19:297: 18474.5

Respondent's finding that the traffic mitigation measures were
infeasible is based upon an erroneous and narrow reading of the City of
Marina case. Based upon City of Marina, Respondent knows that it must
mitigate for off-site impacts created by the Campus Expansion Project.
Respondent also knows that CEQA requires Respondent to pay for those
mitigation measures to reduce the environmental impacts caused by the
Campus Expansion Project. Where Respondent goes wrong is when it
interprets City of Marina for the support that Respondent discharges both of
these requirements by "directing the CSU chancellor to request from the
5 Respondent's reliance on City of Marina is even more egregious as

it was applied to Caltrans. Despite identified impacts to freeway entrances
and other state controlled roads (which in turn effect City streets and
roadways), Respondent took the position that it did not have to provide any
funding for those impacts. AR l8:264:17157-17158~ 19:297:18489-18525;
19:303: 18616-18619; 19:310: 18630-18635.
17
governor and the legislature, through the annual state budget process funds
to support those [mitigation] costs." AR 19:303:18616-18619.

Respondent's reliance on City of Marina to determine the mitigation
is infeasible is improper.
2. Respondent's interpretation of City of Marin a to
support its fmding that the traffic mitigation measures
are infeasible is wrong.
The California Supreme Court unanimously held, in relevant part,
that, while the Board of Trustees lacked jurisdiction and authority to build
or expand extraterritorial roads to mitigate traffic impacts, the Board of
Trustees had authority to make fair-share contributions to a third party to
construct the necessary infrastructure improvements and therefore could not

disclaim responsibility to mitigate environmental effects as infeasible
pursuant to CEQA Section 21081(a)(2). City of Marina, 39 Ca1.4th at 359-
360. Nothing in City of Marina prevents other methods of assuring
mitigation, including "voluntary payments" from sources other than the

Legislature or changes to the project to limit the project impacts. Indeed,
City of Marina directly confers this power and duty on Respondent. Id. at
361.
The Court in City of Marina frames the issue not on a particular
method Respondent must take to meet its obligations under CEQA but that
Respondent has the duty and authority to meet those obligations. Id. at 359.
City of Marina tells Respondent that if you propose a campus expansion,
which will have an environmental impact on the community outside your

campus boundaries, you will have to pay your fair-share to mitigate for
those impacts either through voluntary payments or alteration of the

project. Id. at 360-361.
Respondent's claim that it has discharged its duty under CEQA even
if the Legislature does. not grant a budget request for mitigation costs comes
18
from a discussion which was beyond the holding in the City of Marina case.
Id. at 367. As set forth in the concurring opinion by Justice J. Chin, the
issue presented in City of Marina was on the legality of disclaiming the
responsibility to mitigate, not on the implication of being unable to secure
funds to mitigate. Id. at 372. Discussion regarding the method of
Respondent's authority and obligation to fund off-site mitigation was not at
issue. Because City of Marina did not decide this issue, it is not proper for
Respondentto rely on City of Marina for its position. People v. Jennings
(2010) 50 Cal.4th 616,684; Dey v. Continental Cent. Credit (2008) 170
Cal.AppAth 721, 728 ["A decision is authority only for the point actually
passed on by the court and directly involved in the case."]; Rosen v. State
Farm General Ins. Co. (2003) 30 Cal.4th 1070, 1076 ["An opinion is only
authority for those issues actually considered or decided. "J
City of Marin a did not address the issue currently framed in this
litigation. This case takes the City of Marina decision one step further. In
that case, Respondent's obligation to pay for or contribute to payment of
mitigation measures for off-site impacts was confirmed, now the Court
must decide the scope of that requirement. City contends that the City of
Marina court could not have intended the limitation now suggested by
Respondent. If this is the case, then City and every other local entity with a
university in its city in the same place it was before the City of Marina
wherein universities would reap all the benefit of their campus expansions
and leave the clean up to the surrounding community and city. City of
Marina made a fundamental and irrevocable change in Respondent's
obligations under CEQA. Before City of Marina, Respondent contended it
was not obligated to pay for off-campus mitigation - at all. Despite the
legal revolution of City of Marina on Respondent's CEQA obligations,
after City of Marina, Respondent reaches the same result. No money to pay
for off-campus mitigation. The status quo of leaving local governments to
foot the bill for impacts of campus expansion plans was absolutely changed
19
by a unanimous California Supreme Court in City of Marina. Respondent
should not be permitted to use this case to maintain what the Supreme
Court clearly intended to change.
Moreover, if Respondent's position is correct that it can proceed
with projects with unfunded mitigation, it would be as if the Court is
creating a new categorical exemption for state agencies. There is no such

CEQA exemption and only the Legislature can excuse a category of
projects from compliance with CEQA. Pub. Resources Code §§ 21080-
21084; CEQA Guidelines §§15260-l5300. City of Marina requires

Respondent to fully comply with all CEQA requirements even those for
mitigation and it did not, as advocated by Respondent, create a special

category of CEQA compliance for Respondent.
Reliance on State Legislature funding is also an improper deferral.
AR 19:303:18616-18619. CEQA prohibits lead agencies from deferring
mitigation responsibility to another agency. See e.g., Citizens v. Mount

Shasta (1988) 198 Cal.App.3d 433. Contrary to this general rule,
Respondent seeks to shift responsibility for mitigating project impacts to
the Governor and Legislature. Approval of the project acknowledges the
major traffic impacts and identifies necessary mitigation to address these
impacts. The Resolution, however, goes on to state that even absent

funding from the Legislature, it will proceed with the campus expansion,
not providing any alternative to address these impacts. This position places
responsibility for project impact mitigation on the Legislature rather than
on Respondent.
City of Marina could not have intended to allow Respondent to
escape its responsibilities by a simple request placing cities and

communities in the same place as before the City of Marina case wherein
20
. Respondent will continue to expand its campuses as it sees fit and place all
the economic and environmental burden on someone else.
r ID. AS A RESULT OF RESPONDENT'S IMPROPER

INTERPRETATION OF ITS LEGAL OBLIGATIONS UNDER
CEQA, THE EIRFAILED TO IDENTIFY AND IMPLEMENT
FEASmLE MITIGATION
, A. The Standard of Review

';'
i,
,
1
The certification of a legally inadequate ErR constitutes a prejudicial
,
abuse of discretion. Pub. Resources Code § 21005(a); Citizens to Preserve
the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421,428. Under

CEQA, the court must determine whether the agency has committed a
prejudicial abuse of discretion. Pub. Resources Code § 21168.5. An abuse

of discretion is established if: 1) The agency's determination or decision is
not supported by substantial evidence; or 2) The agency has failed to

proceed in a manner required by law. Id.
Under the substantial evidence standard, the court must determine,
as a legal matter, "whether the EIR is sufficient as an informational
document." Kings County Farm Bureau v. City of Hanford ("Kings
County") (1990) 221 Cal.App.3d 692, 711. Rather "substantial evidence"
means "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." CEQA Guidelines §
15384(a). While the court's review of the findings to determine ifthey are
supported by substantial evidence involves some deference to the agency's
discretion, the Court still has to carefully scrutinize the record. Laurel
Heights Improvement Assn., 47 Ca1.3d 376, at 408,409, fn. 12; Topanga
Assn. For A Scenic Community v. County of Los Angeles (1974) 11 Cal.3d

506,514. While a court "may not substitute our judgment for that of the
decision makers, it must ensure strict compliance with the procedures and
21
mandates of the statute." Save Our Peninsula Committee v. Monterey
County Board of Supervisors, 87 Ca1.App.4th at 118.
B. The EIR Is Deficient Because It Failed To Identify and

Discuss Feasible Options To Pay For Mitigation Including
The Capital Outlay Funding Used To Pay For Campus
Expansion Construction
City of Marina does not absolve Respondent of all CEQA

obligations by the act of requesting funds through the state budget process,
but confrrms at least two other methods. First, City of Marina confirms that
a public agency can make a voluntary and discretionary payment as the
method of discharging 'its duty under CEQA to mitigate environmental
effects of its proj ect. Id. at 357, 358. This voluntary payment could come
from any source. Second, the Court suggests that Respondent could alter
the project on campus to reduce effects off campus and, thus, reduce the
mitigation required. Id. at 360, 367. There is no evidence in the record that
Respondent even tried to identify alternate funding for the mitigation
measures or an alteration of the project design on campus which could have

resulted in reduced impacts and less need for mitigation measures. If
Respondent had not erroneously limited its obligations, it should have
considered a number of feasible mitigation measures.

CEQA requires a lead agency to demonstrate an enforceable
commitment to actually mitigate project impacts. CEQA Guidelines §
15126.4(a)(2); Pub. Resources Code § 21 081.6(b); Rio Vista Farm v.
Bureau of Solano (1992) 5 Cal.AppAth 351,376-377; Save Round Alliance
v. County of Inyo (2007) 157 Ca1.App.4th 1437. The Mitigation,
Monitoring and Responsibility Plan (MlvlRP) for the CampusExpansion
Project identifies 29 traffic mitigation measures but does not provide a plan
or any certainty about implementation of these measures because the
implementation of the mitigation is solely dependent on receipt of funds
22
from the legislative request. Supp. AR 35:696:S25584. Respondent's
position that it will only pay if it gets money makes the mitigation illusory
and thus, unenforceable. In this case, Respondent has made no
commitment at all as to when the necessary traffic improvements will take
place, if ever. Because of the Statement of Overriding Considerations, it is
highly unlikely that the mitigation measures will ever get built. This is
unacceptable. CEQA requires that there be a reasonable plan for mitigation

implementation. Save Our Peninsula Committee, 87 Cal.App.4th at 141.
Respondent's position does not provide a reasonable plan to ensure

implementation of feasible mitigation.
Through the state budget process, Respondent was given the funds
necessary to pay for off-campus mitigation to ensure implementation of

mitigation. Respondent had the authority and means to implement
mitigation.
1. Respondent has the authority to fund off-campus
mitigation "aspart of the power and responsibility
conferred on Respondent for construction and
development of state university campuses.
Public agencies may use their discretionary powers granted by laws

other than CEQA to mitigate environmental impacts. Pub. Resources Code
§ 21004. While CEQA does not expand the powers granted by other laws;
when a public agency adopts measures to mitigate an environmental
impact, it may exercise those express or implied powers provided by law
other than CEQA. Pub. Resources Code § 21004, CEQA Guidelines §
15040( d). The declaration of legislative intent accompanying Public
Resource Code section 21004 states that the statute is intended to confmn
.an agency's broad authority to mitigate. Stats 1982 ch 1438, § 4.
Additionally, the CEQA Guidelines provide that where another law grants
an agency discretionary powers, CEQA supplements those discretionary
powers by authorizing the agency to use the discretionary powers to
mitigate or avoid significant effects on the environment when it is feasible
to do so with respect to projects subject to the powers of the agency.
CEQA Guidelines § 15040(c).
Respondent is expressly authorized to fund campus construction and
related expenses required to carry out construction of a project: "Trustees of
the State of California State University shall have full power and
responsibility in the construction and development of any state university
campus, and any buildings or other facilities or improvements connected
with the California State University." Ed. Code § 66606. Further,
Respondent's may "expend all money appropriated for the support and
maintenance of the [CSU]" (id., § 89750), and authorizes them to "enter
into agreements with any public or private agency, officer, person, or
institution, corporation, association, or foundation for the performance of
acts or for the furnishing of services, facilities, materials, goods, supplies,
or equipment by or for the trustees or for the joint performance of an act or
function or the joint furnishing of services and facilities by the trustees and
the other party to the agreement." Ed. Code § 89036(a). Based thereon,
Respondent's have both responsibility andjurisdiction within the meaning
of Public Resources Code section 21081, subdivision (a)(2), to contribute to
the cost of off-site infrastructure improvements needed to mitigate
significant environmental impacts of an expansion project. The authority
provided under the Education Code read in conjunction with CEQA
provides a broad authority to Respondent to mitigate off-site environmental
impacts. San Franciscans for Reasonable Growth v. City and County of
San Francisco (1989) 209 Cal.App.3d 1502, 1525.
Cost of off-campus mitigation should be calculated as part of project
expenses identified in Capital Outlay Program. Respondent received
millions of dollars from the State as part of the 2008-2008 Capital Outlay
Program budget request. These funds should be used to perform off-
campus mitigation. Respondent's decision to make "off-campus
24
mitigation" a separate budget line item is not supported by any authority
and contradicts its requirements under the Education Code, CEQA and City
of Marina. CEQA is designed to ensure that agencies consider and avoid
the environmental effects of its development decisions. As such,
Respondent is required to treat mitigation costs for off-campus impacts as
part of the cost of implementing the Campus Expansion Project.
Respondent created an artificial, unsupported distinction betweenthe cost
of the construction and the cost of mitigation. There should be no
separation because the requirement to mitigate under CEQA is an inherent
part of the project itself.
Review of Respondent's budget requests to pay for mitigation
measures illuminates a clever shell game that effectively ensured no funds
would be budgeted by the State. Indeed, Respondent's request to the State
Legislature for the mitigation funds was "separate" from all construction
projects and intended to be "above and beyond" Respondent's normal
request. As a practical matter, this ensured the State would not approve this
additional funding request. More importantly, at the end of the day,
Respondent had the authority to allocate funds from the State to pay for
traffic mitigation. But simply choose not.
The interpretation that construction funds and mitigation funds are
one in the same was set forth in County of San Diego v. Grossmont-
Cuyamaca Community College District (2006) 141 Cal.App.4th 86, 103-
104. The Appellate Court concluded that the District was authorized under
the provisions of the Community College Construction Act of 1980 (Ed.
Code, § 81800 et seq.), Education Code section 81949 and CEQA
Guidelines 57100 & 57121(f) to spend funds on project related off-campus
road and intersection improvements as mitigation measures under CEQA.
Id. at 106. Here, Respondent is mandated by similar legislative provisions
for state universities and they too, should use construction related funds to
pay for off-campus mitigation.
25
Allowing Respondent to separate construction funding from
mitigation funding leads to the untenable consequence of major projects
with significant environmental impacts being constructed without the
corresponding mitigation.
2. Respondent received money for campus construction
and has discretion and authority to use those funds to
pay for off-campus mitigation.
The California State University and San Diego State University

. follow a June-through-July fiscal and budget year. CSU submits its budget
proposal to the Governor in November each year for the upcoming fiscal
year. The Governor's budget - which incorporates his office's own
proposal for the CSU budget - is announced in January. (Supp. CT6,
Exhibit E, 0902.) A revised estimate of available revenues is announced in
May, and any budget adjustments the Governor believes are necessary are
publicized. (Supp. CT, Exhibit A, 003.)
As part of the state university budget process, Respondent prepared a
Capital Improvement Program budget, which sets forth the funding request
for the development and expansion of state university campuses. In May
2007, the Draft State and Non-State Funded Five-Year Capital
Improvement Program 2008-2009 through 2012-13 (Five Year Capital
Improvement Program) was approved by Respondent. AR 20:322:20052.
The Five Year Capital Improvement Program identifies the needs of all
state university campuses to construct and renovate new and existing
facilities to accommodate additional student body determined necessary by
the university. AR 20:322:20052,20:322:20067-20332,20:322:20235-
20247.
6 Petitioners filed a motion to augment the record on appeal with

items which were the subject of a Request for Judicial Notice ill the trial
court. That motion to augment was granted. Those documents are
designated as the Supplemental Clerk's Transcript (Supp. CT).
26
In addition to the Five Year Capital Improvement Program,
Respondent also prepared the 2008-2009 Capital Outlay Program budget
request. The 2008-2009 Capital Outlay Program identifies the needs of the
campuses to serve proj ected student growth, and designates funds to ensure
facilities can be renewed and renovated to support that growth. AR
20:322:20069,20:322:20235-20247. The 2008-2009 Capital Outlay
Program is the yearly request for state funding which comes from the
capital amount supported by the Higher Education Compact, Agreement
Between Governor Schwarzenegger, the University of California, and the
California State University 2005-06 through 2010-11 (Governor's
Compact). (AR 20:322:20052; Supp. CT, ExhibitL, 1326-1335.) The
Governor's Compact is an agreement that sets forth anticipated state
funding levels for universities over a period of years. In September 2007,
Respondent approved the 2008-09 Capital Outlay Program and the Five
Year Capital Improvement Program setting forth the total budget request
and priority of funding. AR 20:322:20051-20333.
The 2008-2009 Capital Outlay Program acknowledges the City of
Marina case and Respondent's requirement to pay for off-campus
mitigation resulting from the campus expansion construction projects. AR
20:322:20053. Instead of including the costs of off-campus mitigation as
part of the general cost of construction in the Capital Outlay Program,
Respondent separates out the "mitigation costs" from the cost of
construction and creates a separate, distinct budget line item request. AR
20:322:20052-20053. The budget request for off-campus mitigation was
not allocated to ensure specific projects would be funded to provide for
adequate mitigation but instead the budget request sought to create a
system-wide pool of money that could be used contingent upon
Respondent's certification of the environmental impact report connected
with each particular campus master plan. AR 20:322:20059. Respondent
specifically advised the State that when considering the budget request, the
27
State monies appropriated to Respondent for off-campus mitigation should
not come from the monies allocated through the Governor's Compact but
any off-campus mitigation fund allocations should be considered
supplemental to and beyond the overall bond amount. AR:20:322:20319-
20322,20053,20332-20333. During a time of State financial crisis, this
position virtually guaranteed mitigation funding would not be provided.
The Governor's budget was published on January 10,2008. (Supp. CT,
Exhibit E, 0902; Exhibit F 0903-1038.) The Governor's budget did not
include any monies requested for off-campus mitigation. (Supp. CT,
Exhibit C, 0595-0608, and Supp. CT, Exhibit W, 1416-1418.)
The state budget process did, however, result in an allocation to
Respondent of over $2.9 billion. (Supp. AR 35:693:S25410-S25453; Supp.
CT, Exhibit C, 0704.) After the State appropriates funds to Respondent, the
appropriations are allocated among the campuses by the Office of the
Chancellor. Supp. AR 35:693:S25410-S25453. The CSU chancellor for
Respondent was given complete discretion to make adjustments to the
priority, and scope and ultimate use of the funds provided by the State in
connection with the 2008-2009 State Funded Capital Outlay Program. (AR
20:322:20054,20059-20061; Supp. CT, Exhibits 0 (1340-1353) and P
(1354-1362).) Even though Respondent had complete discretion to allocate
funds to pay for the mitigations measures it choose not to. To date, no
funds have been allocated to pay for mitigation measures identified as
necessary by the Campus Expansion Proj ect.
3. Implementing mitigation measures with project
construction funds is feasible.
Respondent was aware of and should have disclosed the option of

paying for feasible mitigation measures by and through the funding sources
being proposed for each project component, Each of the project
components identified in the Campus Expansion Project have specific
funding sources to build the respective project component. If these sources
28
are available to build the projects, the money sources should also be
available to mitigate. Each of the projects and their identified funding is set
forth below.
(1) Adobe Falls Faculty/Staff Housing. The Adobe Falls
development is a two phased development of faculty and staff housing units
on a site approximately 33 acres in size located north of Interstate 8 (1-8).
The Adobe Falls projects are non-state funded Capital Outlay projects and
will be built and funded by "outside development interests." AR
20:322:20245-20246.
(2) Student Housing. The student housing projects include
demolition of two existing student housing structures and the construction
of five new housing structures. City/Agency's Opening Brief AR
15:222:14210-14211. The student housing projects are non-state funded
Capital Outlay projects which will proceed based on a "viable financial
plan and qualification for the Systemwide Revenue Bond Program." AR
20:322:20245-20246.
(3) Alvarado Park -- Land Acquisition. The Alvarado Park is an
expansion of the northeastern campus boundary, consisting of multi-phase
development (near-term and long-term) .of approximately 612,000 GSF of
academic/research/medical space, and a 552,000 GSF vehicle parking
structure. City/Agency's Opening Brief AR 15:222:14210. Project
funding for this project component will be provided by campus parking
reserves and a future bond sale supported by campus parking fees. AR
20:322:20246.
(4) Alvarado Hotel. The Alvarado Hotel project will consist of
an approximately 60,000 GSF six-story building with approximately 120
hotel rooms and studio suites. City/Agency's Opening Brief AR
15:222:14210. The Alvarado Hotel is a non-state funded Capital Outlay
project and will be built and funded by "a viable financial plan and
partnership arrangements." AR 20:322:20245
29
(5) Campus/Almuni Conference Center. A new 70,000 GSF 3-
story building to be used for meeting/conference space, office space, food
services, and retail services, on approximately one-half acre located east of
Cox Arena. City/Agency's Opening Brief AR 15:222:14211. The project
will be funded with donor funds. AR 20:322:20244.
(6) Student Union. This project win include a 70,000 GSF
expansion and renovation of the existing Aztec Center to include social
space, recreation facilities, student organization offices, food services, and
retail services and will be built and funded by "student fees."
City/Agency's Opening Brief AR 15:222:1421,20:322:20245, Supp. AR
22:343:S21122. An increase of 10.0% in the State University Fee was
approved for fiscal year 2008, which would generate $8.9 million in
additional tuition and fees revenue for the University in fiscal year 2008.
Supp. AR 35:693:S25410-S25453.
The funding sources identified above are intended to be used to plan,
construct and operate the facilities. AR 20:322:20074,20:322:20053.
There is nothing in the EIR that Respondent considered these funding
sources (i.e., bonds, private donations, developer funds, student fees) to
fund mitigation. During the trial court proceedings many of the projects
identified above were still in the preliminary planning stage which would
have allowed Respondent to calculate and incorporate mitigation costs as
part of the planning process. AR 20:322:20242.
4. Implementing mitigation measures with bonds is
feasible.
Respondent is fully capable of utilizing non-state funds for off-site
mitigation costs without prior approval from the State Legislature. For
example, the State University Revenue Bond Act of 1947 (ACT) provides
Respondent with the ability to issue non-state funded revenue bonds. Ed.
Code §§ 90010-90081. Further, Respondent can use any source of funding
30
available to it, including revenue bonds and revenue bond anticipation
notes to construct any proj ect and acquire all property necessary therefore
on such terms and conditions as it may deem advisable. Ed. Code §§

90061,90064. Here, the EIR concludes there are several area roadway
improvements required in order to bring the Campus Expansion Project's
traffic impacts to below a level of significance. This off-site mitigation
represents a condition of approval to the Campus Expansion Project, and

therefore Respondent may fund using any mechanism available to it under
the ACT, including revenue bonds.
In 2003, pursuant to the ACT, Respondent approved policies and

procedures for funding capital improvements with non-state funding
through the adoption of Systemwide Revenue Bonds. (3 CT 614-627.)
Systemwide Revenue Bonds provide funding for various construction
projects, including student residence and dining halls facilities, continuing
education buildings, student unions, parking facilities, health facilities, and

auxiliary organization facilities at designated campuses within the System
as specified by the individual bond documents. Id. This program has
provided Respondent with the unilateral authority to approve funding for
capital projects that otherwise would require legislature approval. To date,
Respondent has used non-state funded Revenue Bonds to fmance student

housing, student unions, parking facilities, health facilities, continuing
education facilities, and auxiliary organization facilities throughout the
CSU system. Since Respondent unilaterally manages and disburses funds

held within the Systemwide Revenue Bond program, no interaction with or
approval by the state legislature is required, and therefore no permission or

request for off-site mitigation funding is required. Respondent's findings
must address this and other non-legislative sources (ie., private gifts,
fundraising, sale of property, subsequent requests to the Legislature) for
31
mitigation funding before it concludes that identified mitigation for
significant impacts is infeasible.
5. Implementing mitigation measures by altering the
scope of the project is feasible.
City 0/ Marina suggests that Respondent could alter the project on

campus to reduce effects off campus and, thus, reduce the mitigation
required. Id. at 360,367. Section 15126.4 of the CEQA Guidelines
provides that to ensure mitigation measures are implemented, the mitigation
measures can be incorporated into the proj ect design. To incorporate
mitigation measures into a project means to amend the project so that the
mitigation measures will be implemented, such as reducing the scope of the
project requiring that mitigation measures are implemented as a condition
of the project. Federation a/Hillside and Canyon Assoc. v. City of Los
Angeles (2000) 83 Cal.App.4th 1252, 1261, fn. 4. There is no evidence in
the record that Respondent even considered adjusting the scope of the
project on campus in order to minimize off campus effects.
IV. THE EIR FAILS AS AN INFORMATIONAL DOCUMENT
Respondent abused its discretion by certifying the Campus
Expansion Project and EIR without relevant and material information

regarding funding options. Respondent has an obligation to disclose all
relevant funding options for implementation of feasible mitigation, which is

distinct from its legal obligation to ensure the mitigation plan is
implemented. Because of Respondent's position regarding City of Marina,
Respondent failure to identify, disclose and discuss the various options to
pay for the mitigation. This failure is an abuse of discretion and warrants
..decertification of the ElR.
The purpose of an EIR is to provide state and local agencies and the
general public with detailed information on the potentially significant
32
environmental effects, which a proposed project is likely to have and to list
ways in which the significant environmental effects may be minimized as
well as indicate alternatives to the project. Pub. Resoures Code §§ 21002

and 21003. A local agency must make an initial determination as to which
alternatives are feasible and which are not. Citizens of Goleta Valley v.
Board of Supervisors (1990) 52 CaL3d 553, 569. If an alternative is
identified as at least potentially feasible, an in-depth discussion is required.
Sierra Club v. County of Napa (2004) 121 Cal.AppAth 1490, 1504-150.
"The failure to provide enough information to permit informed
decision-making is fatal." Napa Citizens for Honest Gov 't v. County of

Napa, 91 Cal.AppAth at 361. "When the informational requirements of
CEQA are not complied with, an agency has failed to proceed in a manner
required by law and has therefore abused its discretion." ld., quoting Save
Our Peninsula Committee v. Monterey County Board of Supervisors, 87
Cal.AppAth at 118. Failure to comply with procedures that result in the
omission of relevant information from the environmental review constitutes
a prejudicial abuse of discretion "regardless of whether a different outcome

would have resulted" had the agency complied with CEQA's requirements.
Neighbors of Cavitt Ranch v. County of Placer (Bayside Covenant Church)

(2003) 106 Cal.AppAth 1092, 1100 (emphasis added); Bakersfield Citizens
for Local Control v. City of Bakersfield (Panama 99 Properties) (2004) 124
Cal.App.4th 1184, 1198, 1208; Rural Landowners Assn. v. City Council
(1983) 143 Cal.AppJd 1013, 1023 [where "failure to comply with the law
results in a subversion of the purposes of CEQA by omitting information
from the environmental review process, the error is prejudicial."] The
. critical question is whether an alleged procedural violation "deprived the

public or local agencies of information relevant to" the project. Neighbors
of Cavitt Ranch, 106 Cal.AppAth at 1102; Sierra Club v. State Bd. of
33
Forestry (1994) 7 Ca1.4th 1215, 1236-1237 [prejudice is presumed where
the absence of information "frustrated the purpose of the public comment
provisions of the Forest Practice Act" and made "meaningful assessment of
potentially significant environmental impacts" impossible.]
An EIR that incorrectly disclaims the power and duty to mitigate

identified environmental effects based on erroneous legal assumptions is
not sufficient as an informative document. City of Marina, at 356. As set
forth above in Section III, Respondent disclaimed any obligation to disclose
or discuss the numerous methods to fund traffic mitigation. Refusal and
failure to discuss the potentially feasible methods of mitigating the
indentified traffic impacts was an abuse of discretion.
V. THE COURT ERRED IN DENYING CITY'S REQUEST FOR
JUDICIAL NOTICE FOR DOCUMENTS RELATING TO
RESPONDENT'S BUDGET PROCESS

While generally, a decision of a trial court not to take judicial notice
will be upheld unless the reviewing court determines no reasonable judge
would have refused to take judicial notice. Leibert v. Transworld Systems,
(1995) 32 Cal.App.4th 1693, 1700. In this case, because the documents are
relevant to determine the legal question whether Respondent complied with
City of Marina, an independent standard of review should be used.
B. The Court Erred! By Denying City's Request for Judicial
~otice of the CSU and State Budget Documents Because
Thev Are Necessarv To Determine Whether Respondent
Complied With CEQA and City of Marina
By way of a Motion to Discharge, Respondent sought to have the

2006 Writ discharged based upon its claim that it had complied with City of
Marina. In Opposition to Respondent's Motion to Discharge, City made a
Request for Judicial Notice of a number of budget and finance documents.
(3 CT 823-828.) Respondent filed a Motion to Strike. (4 CT 1089-1110.)
The Court granted the motion on the basis that the requested documents
were not part of the administrative record and were never considered by
CSU in certifying the EIR. (7 CT 1626:4-7.) City claims the CSU and
State budget and finance documents are relevant and necessary to
determine whether Respondent acted in compliance with City of Marina
and CEQA allowing the writ to be discharged.
The trial court erred in denying City's request for judicial notice
because these documents were proper for judicial notice and are necessary
to demonstrate that the mitigation Respondent claims was infeasible is, in
fact, not infeasible.
The CSU and State budget and finance documents answer the
question whether CSU appropriately interpreted the City of Marina.
Respondent argues that the fmance and budget documents should not be
considered because they were not "before" or "considered" by the CSU
Board when making its determination regarding approval of the project and
corresponding environmental document. (4 CT 1103, 1106, 1108.) City
disagrees because Respondent's argument that it has complied with City of
Marina necessarily relies on the State's and its own budget and finance
documents and process. (5 CT 1173-1174.) Because they were considered
and referenced during the administrative proceedings, the documents are
relevant and should be considered in determination of the claims in the
instant action. Porterville Citizens for Responsible Hillside Development v.
City of Porterville (2007) 157 Cal.App.4th 885,894 [Court will review
record to determine whether there is evidence approving agency utilized or
referenced documents during administrative proceedings]. This may
include documents created after the project approval when a Court is
exercising independent standard of review. Tiholiz v. Northridge Hospital
Foundation (1984) 151 Cal.App.3d 1197, 1204-1205. It is clear from the
record that Respondent referenced and utilized its own budget and finance
documents as well as those of the State to determine its position regarding
compliance with funding mitigation measures and City of Marina.
35
In support of its argument that it has complied with its City of
Marina funding obligations, Respondent relies on its "Capital Budget
Request" to the State "'to fund the cost of mitigating off-campus
environmental impacts ($15 million)' throughout the CSU system." (2 CT
459:16-19.) Respondent states that this was a "new budget category"
created by CSU in response to City of Marina. And in support of its
argument it claims that the off-campus mitigation category "was listed third
out of 38 items to be included on the State Funded Capital Outlay Program
2008/2009 Priority List." (2 CT 459:21-25.) Respondent further argued
that this budget issue was presented to the CSU Board and presented to the
Department of Finance in making its determination whether it had complied
with its City of Marina funding obligations. (2 CT 460:1-13.) The record
demonstrates that Respondent's interpretation and final action with regard
to City of Marina was a calculated and extensive budget decision.
The CSU and State finance and budget documents also support
City's argument that Respondent's request to the State was insufficient in
that it fai.led to pursue, or even consider, several available funding
alternatives to ensure implementation of feasible mitigation measures. City
argues that Respondent ignored the Supreme Court mandate and instead
made a policy decision to make a hyper-technical reading of the City of
Marina case, which essentially allows Respondent to continue to avoid its
responsibilities and obligations to local governments, the community and
the environment. The intent behind the exclusion of extra record evidence
is to require opponents to raise objections to allow approving agencies to
correct any legal or factual issues before project approval. Here, City
objected throughout the administrative process that Respondent's
decision/interpretation of City of Marina regarding funding was incorrect.
City was not presenting evidence for which Respondent had no notice or
ability to respond. Respondent choose to not make changes based upon the
objections presented during the administrative process.
36
Moreover, City was not given the opportunity to challenge CSU's
statewide budget process, nor did Respondent present any of its budget
choices and process as part of the administrative proceedings relating to the
Campus Expansion Project and ErR giving City the opportunity to
comment as part of the proceedings. Therefore, City's request for inclusion
of the budget and finance documents is more akin to inclusion and
consideration of records when a hearing was not required. See generally
City of Pasadena v. State (1993) 14 Cal.App.4th810.
The CSU and State budget and finance documents demonstrate that
Respondent had the authority and the ability to consider and/or use other
funding mechanisms to meet its obligations. As such, these documents are
relevant to Respondent's interpretation of City of Marina and City's
counter-argument that Respondent could have and should have done more
to ensure funding.
C. The Budget and Finance Documents Are Relevant
and Proper for Judicial Notice
The documents were appropriate for judicial notice and the Court
erred in denying City's request. Exhibits A through I and Exhibits L
through M are legislative documents of the State of California. As such,
these documents may be judicially noticed pursuant to California Evidence
Code Section 452 (c). The documents are appropriate for judicial notice
because they represent official acts of the State of California's executive
and legislative office, pursuant to California Evidence Code Section 452
(c), and, these records represent facts and propositions that are not
reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy.
The evidencewas presented by City to show the budget process and '
procedures, which Respondent must have been involved in order to comply
with the City of Marina. The budget and finance documents were a
necessary part of Respondent's decisions and the trial court should have
37
reviewed and considered them in making a determination whether
Respondent's Motion to Discharge should have been granted.
When making a de novo review, these documents are necessary to
understand the process under which Respondent claims it complied with
City of Marina. See Western States Petroleum Association v. California
State Department of Health (2002) 99 Cal.App.4th 999,1002 [Court granted
request for judicial notice which included the University of California's
report to the Governor on the health and environmental risks and benefits of
MTBE; the Governor's Executive Order No. D-5-99, and policy statements
and resolutions by both the State Department of Health and the State Water
Resources Control Board].
City also sought the trial court to take judicial notice of Exhibits M
through Exhibit W, pursuant to California Evidence Code Section 452 (h),
which authorizes judicial notice of facts and propositions that are not
reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy.
People v. Ramos (1997) 15 Ca1.4th 1133, 1167. The exhibits marked M
through Ware accurate and official records of the California State
University System, and certainly meet the above described criteria. The
exhibits are writings of the California State University System's executive
offices and were written within the scope and duties of those offices. These
writings are direct evidence of official acts taken by the California State
University System and are admissible in this civil proceeding to the extent
they prove certain acts taken by the California State University System,
pursuant to California Evidence Code Section 1280 et seq. Further, these
documents are directly relevant to the instant matter because they detail the
official acts of the California State University in fulfilling its obligations
under the California Public Resource Code Section 21000 et seq. and also
illustrate the Respondent's attempts to comply with City of Marina. These
documents also detail the legislative history leading up to the State of
38
California's budget approval, through a variety of minutes of the California
State University's executive sub-committees as well as its executive
memoranda. See Friends of Lagoon Valley v. City of Vacaville (2007) 154
Cal.App.4th 807, 819 [Court granted request to take judicial notice of
legislative history materials]. Also included in this list of exhibits are
executive orders issued by the chancellor of the California State University

System. See Sentell v. Jacobsen (1958) 163 Cal.App.2d 748,753 [Court
granted a request for judicial notice of orders issued by the California

Department of Agriculture which is certainly analogous to the executive
orders issued by the Chancellor of the California State UniversityS ystem],
which are relevant to support Petitioners' claim that CSU has authority and
discretion to make funding determinations (other than the one it made) to
fulfill its payment for mitigation measures under CEQA and City of
Marina.
Another critical issue here is whether the Respondent has adequately
set forth the bases for its opinion. In Topanga Ass 'nfor a Scenic
Community v. County of Los Angeles, the Supreme Court held that implicit
in [CCP § lO94.5] is a requirement that the agency which renders the
challenged decision must set forth findings to bridge the analytical gap
between the raw evidence and ultimate decision. Topanga Ass 'n for a
Scenic Community v. County of Los Angeles (1974) 11 Ca1.3d 506,515.
Here, an entire legislative process took place where the State of California
adopted its fiscal budget. It is within the context of this legislative history,
Respondent attempted to comply with City of Marina by requested funds
for off-site mitigation. Surely the process undertaken by the Respondent is
relevant in these proceedings.
The documents are also relevant to illustrate that CSU has not made
affmnativegood faith attempts to comply with the decision in City of

Marina. In reconsidering its environmental determination, an agency's
consideration must be performed affirmatively and in good faith.
39
Greyhound Corp. v. ic.c. (DC Cir 1977) 551 F.2d 414,418 [On remand
the court required the commission to affirmatively and in good faith
reconsider Greyhound's case. The court also required the commission to
adequately reason its position if its findings remained the same]. Whether
or not affirmative good faith attempts were made are directly relevant to the
question of whether or not the agency provided a fair administrative
process. These questions oflaw must be decided de novo. Rosenblit v.
Superior Court (1991) 231 Cal.App.3d 1434,1443 [On appeal matters of
law were decided de novo].
Here, the CSU and State budget and fmance reflect the basis for
Respondent's decision regarding City of Marina and demonstrate other
funding mechanisms Respondent could have and should have considered.
CONCLUSION
For the reasons set forth herein, Respondent failed to proceed in a
manner required by law in certifying and approving the 2007 Campus
Master Plan Revision EIR in compliance with CEQA and the Public
Resources Code. Moreover, this decision, and the statement of overriding

considerations justifying the decision was unsupported by substantial
evidence. Accordingly, the decision to certify and adopt the EIR should be
set aside, and Respondent ordered to prepare and certify a new
Environmental Impact Report which meets the standards set forth under
CEQA.
Dated: November 24,2010
JAN 1. GOLDSMITH, City

Attorney
BvG~~V\J
Christine M. Leone
Attorneys for Petitioners and
Appellants, City of San Diego
and Redevelopment of the
City of San DIegO
40
I"'
r·····.
II Mark J. Dillon
Michael S~Haberkorn
GATZKE DILLON & BALLANCE LLP
1525 Faraday Avenue, Suite 150
Carlsbad, CA 92008
Tel.: (760) 431-9501
I Fax: (760) 431-9512

Attorneys for Respondent,
I Board of Trustees of California State of University
mhaberkom(a),gdandb.com
i Margaret M. Sohagi,
THE SOHAGI LAW GROUP, PLC
11999 San Vicente Blvd., Suite 150
Los Angeles, CA 90049-5136
Tel: (310) 475-5700
Fax: (310) 475-5707
msohagi@sohagi.com
.Attorney for Petitioner and Appellant
San Diego Metropolitan Transit System;
San Diego Association of Governments
SAN DIEGO ASSOCIATION OF GOVERNMENTS
John F. Kirk, Deputy General Counsel
401 B Street, SUIte 800
San Diego, CA 92101
Tel: (619) 699-1997
Fax: (619) 699-1995
Attorney for Petitioner and Appellant
San Diego Association of Governments
Hon. Thomas Nugent
San Diego Superior Court
.' Dept. NC-30 - North County
-~;:'
~.
325 S. Melrose
I:,
. ..;. Vista, CA 92081
Edmund G. Brown, Jr., Attorney General
». Department of Justice
PO Box 944255
Sacramento, CA 94244-2550
California Supreme Court
350 McAllister Street
San Francisco, CA 94102-4783 (4 Copies)
I declare under penalty of perjury and the laws of the State of

California that the foregoing is true and correct. Executed on
November 24, 2010, in San Diego, California.
~C'~fV0Jr
Merlita C. Sarmiento'
42

San Diego, California

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IN THE COURT OF APPEAL, STATE OF CALIFORNIA

FOURTH APPEL ATE DISTRlCT, DIVISION ONE

CITY OF SAN DIEGO AND ) Court of Appeal

BOARD OF TRUSTEES OF THE

Defendant and Respondent.

Appeal from a Judgment of the

The Honorable Thomas Nugent

Jan I. Goldsmith, City Attorney

Attorneys for Petitioners and Appellants.

STATEMENT OF THE CASE 1

1. THE TRIAL COURT ERRED IN FINDING THAT CITY

II. RESPONDENT'S FINDING THAT TRAFFIC

1. The EIR should not have been certified because the

2. Respondent's interpretation of City of Marina to

III. AS A RESULT OF RESPONDENT'S IMPROPER

A. The Standard of Review 21

3. Implementing mitigation measures with project

A. The Standard of Review 34

B. The Court Erred By Denying City's Request for Judicial

unmitigated traffic impacts. The EIR failed to disclose, discuss and

implement feasible mitigation for these traffic impacts. This deficiency is

Respondent contends it has satisfied its CEQA obligations to ensure

implementation of feasible mitigation to pay for off-site mitigation by the

Project. City contends Respondent's decision must be vacated because the

approval depends on an erroneous legal assumption that City of Marina

limited its obligations under CEQA to disclose and implement feasible

measures are "infeasible" because Respondent cannot guarantee it will

approving the Campus Expansion Project despite the remaining

unmitigated effects. The legal insufficiency of the EIR coupled with

Respondent's refusal to accept its duty to mitigate significant off-site

environment. Respondent's actions in approving the Campus Expansion

it. County of Solano v. Vallejo Redevelopment Agency (1999) 75

numerous statutory responsibilities, many of them related to transportation

1 Pursuant to Cal Rules of Ct 8.200(a)(5), City joins and incorporates

the briefs and arguments of Appellants SANDAG and MTS.

C. The 2005 Campus Expansion Was Also Challenged

From January 18, 2005 to March 18,2005, Respondent circulated a

On October 20,2005, the City and Agency filed a petition under

On December 14,2007, the City and Agency filed a Petition

A. The Standard of Review

3 The term "CEQA Guidelines" refers to the regulations codified in

failed to exhaust its administrative remedies. The standard used in City of

Citizens for Open Gov't v. Napa County Board of Supervisors (2001) 91

instances, which raise completely new and separate issues, as opposed to

Petitioners met their burden of exhaustion.

It was then Respondent's duty and responsibility to respond to those

these issues in this litigation.

C. The Court Erred In Applying the Exhaustion Doctrine

The failure to pursue administrative remedies dose not bar judicial

Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412,418. A

plaintiff need not pursue administrative remedies where the agency's

decision is certain to be adverse. Doster v. County of San Diego (1988) 203

other methods to fund or implement mitigation measures or alterations to

. (7 CT 1633:16-28 - 1634:1-2.) If, however, City has a duty to propose

respond to those proposals. The duties must be complimentary. Yet, the'

record is clear that Respondent expressly rejected that duty. (3 CT 729:7-

22; 730:1-3; 5 CT 1325:13-1326:27; 1326:10-19; AR 18:264:17159;

20:322:20059; AR 20:322:20060; 18:264:17160; 19:297:18466; AR

alternate funding without imposing the predicate duty on Respondent, or as

here, "Respondent's outright rejection of that duty, would require City to

International Union of Operating Engineers, Local 39 (2007) 151 Cal.

A. The Standard of Review