Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County. Super. Ct. Nos. BS102266 and BS102009, Daniel S. Pratt, Judge.
Gilchrist & Rutter, Richard H. Close, Martin N. Burton and Thomas W. Casparian for Petitioner and Appellant.
Manatt, Phelps & Phillips, Douglas W. Beck and Benjamin G. Shatz for Defendant and Respondent Board of Trustees of California State University.
Armbruster & Goldsmith, Dale J. Goldsmith and R.J. Comer for Real Parties in Interest and Respondents Anschutz L.A. Land Co., LLC and Anschutz So. Cal. Sports Complex, LLC.
WOODS, Acting P.J.
INTRODUCTION
The two judgments being appealed in this case arise out of two separate but related decisions of the Los Angeles County Superior Court. The parties on appeal are the same, but the facts giving rise to the issues being raised differ slightly in each case as we explain hereafter. In general, appeal No. B193879 pertains to lighting and seating issues in the sports complex at California State University in Dominguez Hills, California whereas appeal No. B193880 involves issues pertaining to a 200-room hotel dormitory located in the same complex. Both appeals raise contentions under the California Environmental Quality Act (CEQA). As hereinafter explained, the judgment of the trial court in appeal No. B193879 in favor of respondents is affirmed on the basis substantial evidence supports the ruling that petitioner failed to exhaust its administrative remedies. Appeal No. B193880 in favor of respondents is affirmed on the basis of substantial evidence in the record to support the judgment.
Parties.
In the interest of avoiding duplication, the parties in appeal No. B193879 and in appeal No. B193880 are as follows:
Carson Harbor Village, Ltd., a Limited Partnership, doing business as Carson Harbor Village Mobilehome Park, plaintiff and appellant, hereafter referred to as “CHV” unless context requires otherwise;
Board of Trustees of California State University, defendant and respondent, hereafter referred to as “CSU” or “the Board” unless context requires otherwise;
Anschutz L.A. Land Co., LLC, and Anschutz Southern California Sports Complex, LLC, real parties in interest and respondents, referred to hereafter as RPIs, unless separate reference is required by context.
The project location.
The project involves a 200-room hotel, 240-bed dormitory, and 110,000 square foot building complex at or near the campus of California State University in Dominguez Hills (“CSUDH”) in the city of Carson, California, and is generally located east of Avalon Boulevard and South of Victoria Steet. CSUDH serves a diverse population of 8,000 full-time students, and is one of 23 campuses of the state university system.
The nature of the dispute.
The vortex of the dispute centers on whether the proposed changes in the existing facility fall within the category of a new project and/or major changes to a pre-existing project, thereby requiring a full environmental impact report (“EIR”) as contended by CHV or whether a supplemental environmental impact report (“SEIR”) will suffice under CEQA.
A reading of the arguments on appeal reveals that there is very little dispute, if any, that the project will result in significant environmental impacts. The gravamen of the dispute is whether the trial court erred in failing to require CSU to proceed with obtaining a full EIR as opposed to condoning and approving a supplemental EIR for the project. As hereafter discussed, and as previously indicated, we find that CHV has failed to exhaust its administrative remedies in appeal No. B193879. We further find, as previously stated, substantial evidence supports the judgment of the trial court in appeal No. B193880. As a result, we conclude the judgments of the trial court should be affirmed.
FACTUAL AND PROCEDURAL SYNOPSIS
Construction of the Home Depot Center Sports Complex (“HDCSC”) was approved by the Board of Trustees of CSU in its capacity as lead agency.
Education Code section 66600 charges the Board of Trustees of CSU with administering the 23-campus state university system, which includes “full power and responsibility in the construction and development of any state university campus.” Education Code section 66606 further outlines the powers, duties, and functions of the trustees as successor to the State Board of Education and the Director of Education, which by implication includes acting as the lead agency to insure compliance with CEQA on all construction and development on state university campuses.
Condition of the premises before project approval.
Before the Home Depot Center was approved in the year 2001, the western portion of the campus at CSUDH can generally be described as follows as represented by the RPIs and the board of trustees of CSU in their joint respondents’ brief in appeal No. B193879: largely undeveloped; contained an arena with a banked oval track for bicycle racing, commonly known as a velodrome, constructed for the 1984 Olympic Games; other recreational facilities which included such athletic facilities as softball and baseball fields; use of the facilities included athletic and physical education programs for CSUDH students and by a public high school located on the CSUDH campus and by a variety of community organizations for athletic and other events; high mast outdoor lighting at the velodrome provided illumination of 50- to 70-foot candle power which were oriented to both the velodrome and to the fields outside the velodrome, resulting in considerable uncontrolled spillover lighting toward homes in the University Heights area located at the southwest corner of the campus, but did facilitate the use of the athletic fields at night. The joint respondents’ brief on appeal describes a foot-candle as a measurement of “illuminance or light intensity per square foot.”
Background of CSU project approval in June of 2001.
RPIs and the board present a summary in their joint opening brief pertaining to the project approval and the events surrounding this aspect of the project: CSU approved a public/private partnership with RPIs for the $150 million Home Depot Center sports Complex on the campus of CSUDH, consisting of two components; the first component related to 85 acres on the sparsely developed western side of the CSUDH campus which were leased to Anschutz for a sports complex, including a 27,000-seat soccer stadium to serve as home to the Los Angeles Galaxy major league soccer team and also to be used for concerts and other events including a 13,000-seat tennis stadium for major tennis tournaments, a restaurant, practice soccer fields and tennis courts, parking lots, and other facilities. At its inception the project was originally known as the National Training Center, but the name was later changed to the Home Depot Center.
The second component pertained to replacing the athletic facilities previously located in the area leased to Anschutz, involving 40 acres of the campus adjacent to the leased area, which were to be improved with a relocated velodrome for major cycling events, an upgraded gymnasium, a track and field stadium, relocated soccer and baseball fields and tennis courts and was referred to as the “campus improvement area” in the HDC EIR.
The new facilities in the campus improvement area were primarily for use by CSUDH’s own athletic programs, by the public high school on the CSUDH campus, and for community events. However, the track and field stadium was also to be available for use by Anschutz sponsored events. The HDC EIR stated that the track and field stadium “may provide approximately 4,000 permanent seats, with temporary expansion capability to approximately 12,000 seats.” The HDC EIR also stated that Anschutz would use the track and field stadium for an estimated 10 events per year, with typical attendance of 4,000 per event, and a maximum attendance of 12,000.
Changes made during construction of the project.
During the construction phase of the project, certain changes were made which RPIs describe as “minor.” The HDC EIR represented that it was “anticipated that track and field meets would be lit on a temporary basis” with lights providing 50-75 foot-candles of illumination; these lights would be on 70 foot poles located entirely on the western side of the track, facing eastwards; no lights would be aimed in a westward direction; this lighting arrangement would eliminate light spillover in University Heights, a residential neighborhood located just a few hundred feet to the west of the southern part of the stadium; spillover light from the track and field area was anticipated to be less than 0.5 foot-candles at the edge of the University Heights neighborhood; and no significant impact was expected.
In June 2001, the HDC EIR was approved, followed by the opening of HDC in 2003. During the building stage of the project, two changes became necessary to the track and field stadium. The first dealt with seating and the second with lighting. Instead of 4,000 permanent seats being installed, only 2,000 were built. As to lighting, Anschutz determined that it was more cost effective to use permanent lights rather than put up and take down rented, temporary lights multiple times each year. The permanent lights were constructed on ten 90-foot poles spaced around the perimeter of the track and face all directions, including westward towards University Heights. Anschutz maintains that the use of permanent lights instead of the temporary lights described in the HDC EIR did not change the proposed use of the track and field stadium, but merely made for a more economical operation. Anschutz further maintains that the permanent lights did make the facility more useful to CSUDH because it could use the stadium at night, just as it had used its previous athletic fields near the old velodrome, noting that the track and field stadium has a soccer field in the infield of the track used by the CSUDH intercollegiate men’s and women’s soccer teams. Anschutz posits that the soccer teams would rather play their games at night, which would have been precluded without the permanent lights in view of the fact that CSUHD would not have rented temporary lights for such games.
Changes in the project following the construction phase.
In 2004, CSU approved construction of an additional 6,050 permanent seats in the track and field stadium, which brought the total number of permanent seats to 8,050. An environmental review was conducted which came to the conclusion there would be no change in usage of the stadium because the additional permanent seats would be more cost effective than setting up additional temporary seats to accommodate needs for anticipated events. The conclusion that such additions would not have significant impacts was reached in view of the fact that usage of the stadium was not changing; and the original EIR had considered the impact of 10 events per year of typical attendance of 4,000 and a maximum of 12,000.
RPIs point out that neither CHV nor anyone else challenged the new permanent seats. RPIs further maintain that “. . . the statute of limitations for such a challenge has long since passed.”
Complaint by resident of University Heights about the lighting; subsequent action by CSU.
After the track and field stadium opened in 2003, a resident of University Heights called to the attention of CSU that the lights were not compatible with the original HDC EIR. CSU undertook attempts to reduce spillover light impact on University Heights, but the neighboring property owners were not entirely satisfied. As a result, CSU’s Chancellor directed that the lights not be used and the President of CSUDH complied by turning off the lights.
Turning off the lights led to unrest and numerous complaints by soccer program supporters. The CSUDH’s men’s and women’s soccer teams were both nationally ranked since the early 1990’s, which included two NCAA Division II national championships and four trips to the final four and were California Collegiate Athletic Association champions 12 times. Average attendance for evening games under the lights was 969 in 2003, but the athletic department estimated that attendance averaged only 140 when the games were played on weekday afternoons without lights.
As a result of these conflicting claims pertaining to the lights, CSUDH decided to bypass an initial study and prepare a supplemental EIR to evaluate the environmental impact of the permanent lights compared to the temporary lights evaluated in the HDC EIR.
Preparation of the SEIR.
In September of 2005, notice that CSU was preparing a SEIR was mailed to a long list of potentially interested parties, including CHV. After notice was given, CHV did not comment on any aspect of the project or the use of a supplemental EIR.
A draft SEIR was completed in October 2005, which analyzed all the potential impacts of the project, specifically noting that the permanent lights might increase the number of events held at the track and field facility. However, because the seating capacity of the track and field stadium was only 8,050, and the HDC EIR had already adopted mitigation measures for events of up to 27,000, the impact of more events in the track and field stadium would not be significant.
Because neither the City of Carson nor CSUDH had established spillover lighting standards, a survey of criteria used by other jurisdictions was conducted, and a new, strict standard of significance of 0.2 foot-candles was adopted as a conservative standard from the lower end of the range of standards adopted by other jurisdictions. Field measurements of spillover light levels at the edge of the University Heights neighborhood showed that this new standard was exceeded. The field measurements were input into a sophisticated spillover light computer model and mitigation measures were developed to eliminate all environmentally significant spillover light on the six adjacent properties that were determined to be affected.
Notice of availability to review SEIR.
After the draft SEIR was completed in October of 2005, notice of its availability for public review and comment was mailed to the same lengthy list of interested parties, including CHV. A total of 34 letters were received commenting on the draft SEIR, most of which strongly supported the project. None of the comments objected to the use of a supplemental EIR as opposed to some other type of EIR. CHV made no comment.
CSU conducted a public hearing on the project on January 31, 2006, during which a number of people spoke about the project, mostly favoring it. No one from CHV appeared or objected.
On February 1, 2006, CSU adopted by resolution the findings of fact and statement of overriding considerations that had been prepared and circulated before the meeting.
CHV’s challenge by way of mandamus petition.
CHV filed a mandate petition challenging approval of the SEIR as a “cynical, after-the fact decision,” “an impermissible post-hoc-rationalization,” and “a foregone conclusion of an already-completed Project, making no effort to dismantle or discontinue use of the project in order to conduct a sincere evaluation of its environmental effects.”
CHV’s petition alleged, among other things, that CHV was excused from exhausting its administrative remedies in that CSU had failed to give proper notice in two respects as follows: (1) CSU had not mailed notice to the occupants of CHV mobilehome park, nor CHV itself, purportedly required; and (2) CSU had not sent notice to the attorneys for CHV as requested.
Some of the allegations aforementioned were abandoned by CHV when it filed its memorandum of points and authorities in support of its mandamus petition, notably, that CSU continued to use the lights, and that CSU was required to mail notice to all owners and occupants of contiguous property, apparently recognizing that such mailing was only one of three alternative methods of public notice.
However, CHV expanded the scope of its claims by asserting in the petition claims beyond the scope of the lighting issue. CHV alleged that CSU had changed the track and field stadium from a “venue for daytime use, primarily as a training facility, with only 4,000 permanent seats” to a facility with “more than double the permanent seating” which was “a major day-and-night spectator stadium intended to attract large crowds.” CSU maintains that this alleged major transformation had been apparent to the community since “the ribbons were cut on the HDC project in June 2003, more than two years before CHV filed its petition.
At the time CHV filed its memorandum in support of its petition, it also filed a motion to augment the administrative record with a copy of an alleged request for special notice under CEQA in the form of a letter from CHV’s attorneys dated February 22, 2005. RPIs complain that CHV had at least two prior opportunities to request that the letter be included as part of the administrative record, but had failed to do so.
The petition and the motion to augment the record were heard together, resulting in the court denying the motion to augment, finding that the February 22, 2005, letter was not a valid request for special notice because it was not filed with the CSU official designated to receive such notices and it did not request notice of future projects at CSUDH, but merely requested future mailings concerning a different specific project.
In its ruling in favor of respondents in appeal No. B193879 the court denied the mandate petition on the ground that CHV had not exhausted its administrative remedies and therefore had no standing. The court also observed that the use of a supplemental EIR was appropriate in this case since the substitution of permanent for temporary lighting was a minor change.
In its ruling in favor of respondents in appeal No. B193880 the court ruled that the erection of the 200-room hotel dormitory was not a new project but merely an extension and minor change to the existing project which did not require a new EIR.
DISCUSSION
CHV’s claims on appeal are relatively uncomplicated. CHV urges this court to apply the “Fair Argument” standard. Under this standard CHV maintains that a conclusion must be made in its favor requiring reversal and remand to the Superior Court directing that an EIR be undertaken ab initio for the changes made in the project under the guise that such changes were “minor.” CHV maintains that the changes made to seating and lighting were major and new thereby eliminating the use of a supplemental EIR in this instance. The second arrow in its quiver deals with a purported lack of sufficient notice to it or its members involving the contested changes and the use of a supplemental EIR to validate the changes to come into compliance with CEQA.
RPI’s contentions are likewise uncomplicated in support of its position that the decision of the trial court must be affirmed in all respects under the abuse of discretion standard which is under girded with sufficient evidence to support the judgment of the trial court as demonstrated in the record on appeal. RPIs urge this court to reject CHV’s Fair Argument contention as merely a misapplication of appellate decisions applying the standard when no EIR had been obtained at all. RPIs further contend that notice was properly given to CHV pertaining to the seating and lighting changes, that CHV failed to object to the proceedings appertaining thereto; having so acted CHV has waived any objections; and CHV failed to exhaust its administrative remedies.
CHV’s Fair Argument contention.
CHV urges, and we agree, that our initial task is to decide what is the appropriate standard of review. CHV brings the issue more clearly into focus by stating “this Court must make the threshold determination of whether it is reviewing an agency’s decision not to prepare an EIR for a new project (in which case, the Fair Argument standard will apply) or an agency’s decision to prepare a supplemental EIR for a change to an already-proposed project (and therefore, the Substantial Evidence standard applies).” (Italics in original.)
CHV provides further assistance to this court by directing our attention to our high court’s decision in No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, wherein the term “Fair Argument” or a reasonable facsimile thereof, appears to have had its inception. As stated in CHV’s briefing, “In reviewing a lead agency’s determination, courts have applied two different standards of review depending on the issue being decided. In reviewing a lead agency’s determination not to prepare an EIR for a new project, a court will require an EIR ‘whenever it can be fairly argued on the basis of substantial evidence that the project may have a significant environmental impact,’” citing No Oil, supra, 37 Cal.3d at page 75 and Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1071 as authority. CHV postulates that the comments of the California Supreme Court in No Oil, supra, have come to be known as the “Fair Argument” standard, and sets a low threshold for requiring preparation of an EIR. CHV maintains that in this case, the Initial Study showed the proposed Project could concededly have a significant environmental impact (in air quality, noise, traffic etc.), so applying the Fair Argument standard of review will require the Board to prepare a project EIR.
In Pocket Protection v. City of Sacramento (2004) 124 Cal.App.4th 903, the intermediate appellate court concludes that No Oil was modified by statutory amendment to Public Resources Code section 21082.2 in 1984 to nullify the remark in No Oil that “the existence of serious public controversy concerning the environmental effect of a project in itself indicates that preparation of an EIR is desirable.” Without commenting on whether the intermediate appellate court was correct in its assessment, the statutory amendment does not impact our reason for citing No Oil in this instance.
It appears to this court that CHV is getting the proverbial cart before the horse by asserting that the Initial Study showed the proposed project could have a significant environmental impact in air quality, noise, traffic, etc. RPIs have, as CHV asserts, conceded this issue but maintain that the EIR obtained at the initial beginning of the project openly encompassed these subsequent changes. This court’s analysis is not assisted by this comment. Our focus should be and is whether the subsequent changes in seating, lighting and erection of a 200-room hotel dormitory are minor changes to the EIR as originally composed or whether the scope of the changes constitutes such an expansion to the project as to place RPIs in the posture of having to reexamine the project all over again in a new EIR. In other words, are we faced with a new project or merely minor extensions to the old one. It bears worth repeating at this point that in appeal No. B193879 dealing with changes in lighting and seating, our quest is a search for evidence in the record of compliance with the doctrine of exhaustion of administrative remedies. In appeal No. B193880 pertaining to the erection of a 200-room hotel dormitory, our search is focused on substantial evidence in support of the trial court’s conclusions that no new EIR is warranted.
CHV now directs our attention to what appears to be its core argument, namely, what have the courts indicated in determining whether or not a project is a new one. CHV maintains that the decisions have established two tests for determining that a project is new.
The lodestar decision relied on by CHV is found in Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288. CHV reiterates that the project is a completely different project, initiated after the original Home Depot Center Project was already completed, and with completely different uses and completely different objectives than the original Home Depot Center Project. In Save Our Neighborhood, supra, the original project was for a motel, restaurant, gas station, and convenience store, whereas the proposed project involved none of those uses, but proposed a hotel and convention center. CHV posits that while the proposed hotel in Save Our Neighborhood could be said to be similar in use as the original motel, no such argument could be made with regard to the proposed convention center when compared with the original restaurant, gas station, and convenience store. The Save Our Neighborhood court found that even where projects are “planned for the same land and involve[e] similar mixes of uses,” projects are different where, among other things, “there is no suggestion the latter project utilized any of the drawings or other materials connected with the earlier project as a basis for the new configuration of uses.” (Id. at p. 1300.) CHV points out that here there can be no suggestions that the project utilized any of the drawings or materials connected with the Home Depot Center Project. The Home Depot Center Project is a major sports complex with venues for professional and amateur events in soccer, tennis, track and field, cycling and soccer. The proposed project is for a hotel, dormitory, and sports administration uses. CHV says at most RPIs may argue that the projects are related, that is, the hotel and dormitory of the new project house the users of the sports venues of the completed project. But, as the court in Save Our Neighborhood observed, “The question here is not whether the City properly concluded the two projects are related but whether [Pub. Resources Code] section 21166 applies to a situation . . . where a new project is proposed . . . .” (Id. at p. 1297.) As in Save Our Neighborhood, the uses can and do exist independently of each other and are not interchangeable. Accordingly, CHV draws the conclusion that the proposed project is a new project.
CHV next draws our attention to Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, for the proposition that a project that is outside the scope of an original program EIR requires a project EIR. CHV concedes this case does not involve a program EIR, but maintains the same logic applies. If the proposed project is outside the scope of the original project, it requires a separate project EIR. The Board and RPIs reason that the project is “‘an expanded phase of an existing public/private partnership with Anschutz[,]’” and together are merely “separate phases of a single project.” CHV argues that bringing a project “in phases” after-the-fact evidences an “entirely new project,” citing Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1477, footnote 10 and accompanying text as authority.
In finality, CHV asserts that the project is a new project in view of the fact that it follows on the heels of an already completed project. Arguing further, CHV maintains that the provisions in CEQA were never intended to apply to the EIR of a completed project. CHV cites to State CEQA Guidelines as defining a “private project” as “a project which will be carried out by a person other than a governmental agency.” (14 Cal. Code Regs. 15377; italics added.) In other words, CHV is arguing that CEQA is phrased in futuro and as such applies to new projects.
We discern that the distinction drawn between a new project on the one hand and extension of an existing project on the other is interesting, but not necessarily the critical inquiry to be made in a case like this. The overriding concern is the impact on the environment by the changes, whether they be labeled as minor or major. In deciding these appeals we first employ the substantial evidence rule and give deference to the trial court on its findings. Under the rule of deference we come to the conclusion that the changes were minor and not distanced from the original project as revealed in the EIR, thereby permitting the use of a supplemental EIR and substantial evidence supports the judgment of the trial court.
This court finds that the following facts, supported by the record, constitute substantial evidence in support of the judgment. Respondents summarize this evidence in their joint respondents’ brief as follows:
“At meetings of the CSU trustees on November 16 and 17, 2004, CSUDH presented a proposal for an expanded phase of the public/private partnership with Anschutz. The proposal was to develop a 200-room hotel, conference center, 60,000 square foot athletic training center and office complex, 50,000 square foot field house and training center, and 240-bed dormitory on five acres of the HDC project site currently used for parking. . . . The [ ] proposal was discussed at the meeting of the Committee on Finance on November 16, and CSU staff was approved to proceed with environmental review of the . . . proposal the next day.” (Fn. and record references omitted.)
“CSU prepared a detailed initial study for the . . . project, using the optional checklist set forth as Appendix G to the CEQA Guidelines. . . . [T]he initial study began by noting that many of the impacts of the . . . project had already been disclosed and mitigated as part of the HDC EIR. [T]he initial study incorporated mitigation measures from the HDC project, stating ‘[t]he Mitigation Monitoring and Reporting Program (MMRP) for the HDC includes the . . . Project site and is therefore applicable to the proposed . . . Project.’ The initial study then covered each potential environmental impact on the optional checklist (78 in all) and considered whether the . . . project under study would have new environmental impacts arising from the modifications to the original HDC project. In each category, the impacts were classified as either No Impact, Less-Than-Significant, Less-Than-Significant With Mitigation, or Potentially Significant.”
The initial study then went on to state: “‘Effects in the latter two categories will be carried forward in the [SEIR] to be prepared for the proposed . . . Project.’
“For each category on the checklist, the initial study set forth the classification of the project impact, and a brief explanation supporting the conclusion, often with a reference to the HDC EIR. . . . [T]he first issue on the checklist is whether the project will have a substantial adverse effect on a scenic vista. The initial study classified this impact as Less-Than-Significant, and explained: ‘as described in the [HDC EIR], there are no scenic vistas from or into the Project area.’ . . .
“For some issues [in the initial study], the impact was classified as Less-Than-Significant because the impact already had been mitigated in connection with certification of the HDC EIR and adoption of the mitigation monitoring plan. For example, to support the classification of the impact on archaeological resources as Less-Than-Significant, the initial study explained: ‘According to the [HDC EIR] . . ., there are no known historic or cultural resources on-site.’”
The initial study further maintained, because “there are known archaeological resources near the site, there is a potential for discovery of archaeological resources during the excavation for the new buildings.” The initial study indicated that “‘Measures to mitigate this effect are included in the [HDC EIR] and would be applicable to the proposed Project. Potential impacts were disclosed in the [HDC EIR]. No additional significant impact would occur.’ . . .
“[T]he initial study concluded that the . . . project would have incremental impacts that are potentially significant on their own and must be addressed in the SEIR for the . . . project. For example, in the important category of traffic on the local streets, the initial study classified the impact as Potentially Significant, and explained: ‘Traffic impacts were addressed in the [HDC EIR], and mitigation measures were adopted to maintain efficient access and circulation to and from the HDC.’ The mitigation plan calls for differing levels of traffic control measures depending on expected event attendance. ‘The proposed . . . Project would have a significant interaction with the existing HDC facility. However, it may also incrementally increase trips from the . . . Project site during morning and afternoon peak periods. The [supplemental EIR] will address traffic impacts resulting from any such incremental trip increases as well as from any site-specific changes. Additional mitigation measures will be identified as appropriate . . . .’
“A notice of preparation of an EIR for the . . . project pursuant to Section 21080.4(a) of the Public Resources Code and section 15082 of the CEQA Guidelines was published on November 24, 2004 and mailed to more than 300 interested agencies, organizations, individuals and other parties. The mailing list included Carson Harbor, the owner of a mobile home park on the northwest corner of Avalon Boulevard and Victoria Street, near the project site. [Fn. 4 in the joint appendix states: The mailing list also included the Carson Harbor Village Homeowners Association, an organization of owners of mobile homes in Carson Harbor. However, no individual owner or resident of Carson Harbor Village ever objected or otherwise commented on the project, orally or in writing.]
“The notice of preparation stated that CSU would be the lead agency for preparation of a ‘Supplemental Environmental Impact Report’ for the proposed project, and that the report is a supplement to the HDC EIR certified in June 2001. The notice stated that an initial study had been prepared and that the supplemental EIR ‘will focus only on issues identified in the Initial Study as having a new significant or potentially significant impact on the environment.’ The notice also stated that the initial study was available on the CSUDH website or could be reviewed at several places on campus or could be obtained by written request. . . .
“In December 2004, Carson Habor’s attorneys submitted an 11-page letter responding to the notice of preparation. This letter set forth detailed comments on the potential environmental impacts of the project, particularly those affecting Carson Harbor. The letter focused on noise, traffic, air quality, parking, and light and glare – all impacts that the initial study had classified as potentially significant for further study in the SEIR. Although the notice of preparation had clearly and explicitly stated that CSU was preparing a supplemental EIR for the project, the letter did not object to the use of a supplemental EIR for the project. Nor did the letter object to the planned focus of the supplemental EIR on the incremental impacts of the proposed project. . . .
“In January 2005, a notice that a draft of the SEIR for the project was available for public review and comment was published and mailed to interested parties, including Carson Harbor.
“The draft SEIR stated at the outset that it ‘will focus only on issues identified in the Initial Study as having a new significant or potentially significant impact on the environment that was previously disclosed in the [HDC EIR].’ The draft was 140 pages long and set forth a detailed analysis of the project’s impact on aesthetics, light and glare, shadows, traffic, parking, circulation, air quality, noise, utilities, land use and planning. In each of these areas the draft analyzed the incremental impacts of the project over and above the existing HDC, and assessed the significance of those impacts as if this were a new, separate project.
“For example, the traffic analysis noted that the use of the . . . project facilities would be very different from the HDC project. ‘Since the HDC project is very event oriented, the [HDC EIR] addressed pre-event hours when the highest combination of event traffic and adjacent street traffic occurs.’ However, the new project ‘will function on a regular day-to-day basis. It was therefore important to address potential impacts on a day-to-day basis during regular peak hours of background traffic conditions.’
“An independent traffic expert retained by CSU prepared a traffic study to analyze these impacts. In consultation with the City of Carson’s traffic engineer, 14 intersections were identified as most likely to be affected by traffic from the project, and the traffic study analyzed the . . . project’s potential impacts on these intersections. In determining the number of trips that would be generated by the project, the traffic study noted that there would be considerable synergy with the existing HDC project. For example, a substantial portion of hotel guests were expected to be visiting sports teams, coaches, media, and spectators who would be staying at the hotel to attend events at the HDC. These guests would be coming to the HDC from somewhere else even if the hotel were not there, so their trips to the hotel would not be new trips to the site caused by the . . . project. However, the traffic study did not take account of this synergy, but instead developed a ‘worst case’ scenario of traffic impacts by treating the project as having standalone facilities with no relation to the HDC. Trips generated by the hotel were treated as if they were all new trips, generating incremental traffic over the existing conditions.
“The SEIR used this same basic approach in analyzing all the other environmental impacts of the project: All new impacts generated by the . . . project were assessed as if the . . . project were a new, independent project, and the significance of such impacts was judged in the same way. . . .
“Only two of the many comments received on the draft SEIR addressed the use of a ‘supplemental’ EIR, and neither of them made the point raised by [CHV] in this appeal[] that this is a ‘new’ project for which a ‘full project’ EIR should have been used instead of a supplemental EIR, which ‘masks’ the impacts by considering them in the context of the larger project rather than on their own as a stand-alone project.
“First, the City of Carson commented that the modifications to the HDC project were too substantial to permit a ‘supplemental’ EIR under ‘CEQA Section 15163(2)’ and that a ‘subsequent’ EIR should have been used under ‘CEQA Section 15162(1).’ . . . The City did not assert that this was a ‘new’ project for which a ‘project’ EIR is required, as [CHV] argues here, and did not comment on whether the ‘supplemental’ EIR that had been prepared would suffice as a ‘subsequent’ EIR.
“Second, attorneys for the owner of the Colony Cove Mobile Estates mobile home park commented more extensively on the use of a supplemental EIR. The attorneys noted that the SEIR did not appear to be a supplemental EIR within the meaning of section 15163 of the CEQA Guidelines. Instead, they commented: ‘The SEIR is written as if its focus is only on the proposed development, as if the proposed development is a stand-alone project. The SEIR is something like a hybrid focused Project EIR . . . .’ Although they asserted that the EIR did not meet the requirements of a project EIR, they did not base that assertion on the argument [CHV] is making here, that the EIR considered the project modifications in the context of the larger HDC project, rather than on their own. Instead, the attorneys stated that the SEIR was deficient ‘because only planning level detail is provided as opposed to providing “planning, construction, and operation” detail pursuant to Section 15161 [of the CEQA Guidelines].’
“[CHV]’s attorneys submitted a letter commenting on the draft SEIR. The letter focused on the environmental impacts (traffic, parking, noise, aesthetics, light and glare, and air quality) addressed in the SEIR. [CHV] made no argument concerning the use of a supplemental EIR as opposed to a project EIR. [U]nder the heading ‘Other Issues,’ [CHV] criticized the SEIR for evaluating the HDC project ‘as an independent undertaking,’ rather than as a part of the overall HDC project – contradicting its argument here that the SEIR masked the impacts of the . . . project by evaluating it in the context of the larger HDC project, rather than as an independent standalone project. . . .
“After receiving comments on the draft SEIR during the public comment period, CSU prepared and considered a Final SEIR at meetings of the Board of Trustees on May 10 and 11, 2005. After a public hearing, CSU adopted findings of fact, a statement of overriding conditions, and a mitigation monitoring and reporting program and certified the Final SEIR.
“The resolution certifying the SEIR also approved the . . . project, subject to three conditions. After satisfying those conditions, CSU filed its Notice of Determination with the State Clearinghouse on February 2, 2006.” (Record references and original italics omitted.)
Returning now to the issue of seating and lighting issues in appeal No. B193879, we make the following observation. It is true that pertaining to the seating issue, it was changed on a couple of occasions, but the seating was well within the limits envisioned by the original EIR. It is also true that the lighting issue in appeal No. B193879 is a closer call, but substantial evidence in the record reveals that CSU did not embark on a path of hard-headed resistance to the concerns of the citizens and residents of University Heights, but took into consideration their concerns by suspending the use of the lights until their use could be resolved following a hearing on the SEIR. We find that CHV and its members were given notice of the hearing on the lighting issue and elected not to participate either in writing or orally or in person or through counsel, but elected to proceed by way of administrative mandamus. We are mindful of CHV’s attack on the notice given by CSU, namely that CSU failed to mail the notice of preparation to the owners and occupants of contiguous property, citing Public Resources Code section 21092, subdivision (b)(3)(C). However section 21092, subdivision (b)(3) applies to a notice of availability of the draft EIR for public review and not a notice of preparation. Moreover, it requires that the notice be given by “at least one of three” alternative procedures. CHV has highlighted only one of the three alternatives (mailing of the notice to all contiguous owners and occupants), but this was not the alternative that CSU employed. Instead, CSU gave notice by the means specified in Public Resources Code section 21092, subdivision (b)(3)(A), ie. publication in a newspaper of general circulation. As CHV now apparently concedes by its failure to mention this argument in its brief, this complied with the notice requirement of Public Resources Code section 21092. The only remaining alleged defect in the notice given by CSU pertains to the alleged failure to comply with a purported request for notice by the attorney for CHV. We are constrained to note that the request for notice is not included in the record on appeal. Nor has CHV raised the issue of the trial court’s denial of its motion to augment the record with the request thereby waiving the issue. Even if the issue was properly before us, we would find that the letter request did not comply with statutory requirements. Public Resources Code section 21092.2 sets forth two requirements for a request for special notice under CEQA: (1) the request must be a “written request” for future notice under one or more of the CEQA provisions requiring public notice; and (2) the request must be “filed” with the person designated by the governing body to receive such notices. The February 22, 2005, letter does not satisfy either requirement. The February 22, 2005, letter is written by a lawyer and is very precise in identifying its subject. The “Re” line of the letter states that it was written concerning the “Draft Supplemental Environmental Impact Report Concerning the Home Depot Center (‘HDC’) Additional Development (the ‘Proposed Project’).” The opening sentence of the letter refers to another letter dated December 21, 2004, that transmitted “comments pursuant to the Notice of Preparation of a Supplemental Environmental Impact Report concerning HDC and the Proposed Project earlier provided to us by the Board of Trustees of the California State University.” The next paragraph continues with an expression of surprise that the lawyers had not been sent “a copy of the recent ‘Home Depot Center Hotel and Training Facility Draft Supplemental Environmental Impact Report: SCH No. 200010104’ in this matter.” The lawyers then ask to be on the appropriate mailing list “so that we receive new documents in this matter as quickly as possible.” The letter of December 21, 2004, referred to in this letter concerned the hotel project. A copy is in the administrative record for the hotel project. A follow-up letter from the lawyers commenting on the draft EIR for the hotel project is also in the administrative record for the hotel project. We conclude that the request in the February 22, 2005 letter amounts to a request for new documents pertaining to the hotel project and does not include a request concerning other changes to the HDC project, other EIRs, or other projects on the CSUDH campus. We see nothing to suggest that the letter is a request for special notice under CEQA. Nor has CHV convinced us that the letter was filed with the clerk of the governing body in accordance with Public Resources Code section 21092.2. CSU’s governing body is its Board of Trustees, pursuant to Education Code section 66600. The Board of Trustees had adopted Rules of Procedure designating its officers: The Board’s President is the California Governor; a Chair and Vice-Chair are elected from the Board’s members; and the Board’s General Counsel serves as the Secretary. The General Counsel/Secretary is located in the Chancellor’s office at CSU headquarters at 401 Golden Shore in Long Beach, California. The February 22, 2005, letter was not filed with CSU’s governing body, or any officer thereof, or person designated by it to receive requests for special notice under CEQA. Instead, the letter was address to George Pardon on the CSUDH campus. At the time Mr. Pardon was Vice President, Administration and Finance, of the CSUDH campus. It is true that Mr. Pardon was designated in the notice of availability of the draft SEIR for public review and comment as the person to whom comments and questions should be directed. However, this is a far cry from designating Mr. Pardon as the person with whom requests for special notice under CEQA and we note that the notice of availability on which CHV relies was sent on October 21, 2005, eight months after the February 22, 2005, letter.
Public Resources Code section 21902, subdivision (b) provides in relevant part:
We are constrained to find that CHV has simply failed to exhaust its administrative remedies in appeal No. B193879 and that substantial evidence supports the judgment of the trial court in appeal No. B193880.
DISPOSITION
The judgments of the trial court are affirmed. Each side will bear its own costs on appeal.
We concur: ZELON, J., WILEY, J
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
“(3) The notice required by this section shall be given to the last known name and address of all organizations and individuals who have previously requested notice and shall also be given by at least one of the following procedures: [¶] (A) Publication, no fewer times than required by Section 6061 of the Government Code, by the public agency in a newspaper of general circulation affected, the notice shall be published in the newspaper of largest circulation from among the newspapers of general circulation in those areas. [¶] (B) Posting of notice by the lead agency on- and off-site in the area where the project is to be located. [¶] (C) Direct mailing to the owners and occupants of contiguous property shown on the latest equalized assessment roll.”