On May 6, 2015, the Supreme Court scheduled oral argument to be heard at on Tuesday, May 26, 2015 for City of San Diego v. Board of Trustees of California State University, Case No. S199557. The case presents the following issue:

Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under CEQA by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?

The City of San Diego case followed the Supreme Court decision in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, where the Supreme Court held that while the Trustees had an obligation to request appropriation from the Legislature for voluntary mitigation payments, the power to mitigate the “project’s effects through voluntary payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” In a later case, the First District Court of Appeal declined to extend City of Marina to require that the Trustees fund increased fire department services necessitated by campus expansion because in that case, the impact was determined to be less than significant. (City of Hayward v. Board of Trustees of California State University (2012) 207 Cal.App.4th 446, which we wrote about in an earlier post.) Review was granted for City of Hayward, but further action has been deferred pending disposition the issue in City of San Diego.