Court of Appeal Narrowly Reads School Bond Measure Language; Parking Shortfall May Constitute An Environmental Impact Under CEQA

A school district board placed a large bond measure on the city ballot to fund projects at multiple schools in the district, including a project to erect stadium lighting at a high school.  An organization of neighborhood residents opposed the project on multiple grounds, including that the project required environmental impact report (“EIR”) preparation under the California Environmental Quality Act (“CEQA”) and that the project violated the Proposition 39 requirement that projects funded by a bond measure be specifically listed in the measure.  The trial court ruled against all arguments of the neighborhood organization.  On appeal, the district court of appeal upheld part of the trial court ruling, but held that the stadium lighting project was not eligible for funding from the bond measure and did require an EIR.  (Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist.  (---Cal.Rptr.3d---, Cal.App. 4 Dist., April 25, 2013).

Facts

In July 2008, the San Diego Unified School District (“District”) Board of Education (“Board”) resolved to place a proposition on the November ballot seeking authorization for the District to sell $2.1 billion in bonds for construction and repair of school facilities throughout the District.  Among the projects were two related to the stadium at Hoover High School (“Hoover”):  one to renovate the bleachers and another to renovate the fields, track, and courts to comply with requirements of the Americans with Disabilities Act (“Hoover Projects”).

The District began review of the Hoover Projects under CEQA by performing an Initial Study to describe the project and determine whether significant environmental impacts could result from them.  The study noted that the stadium upgrade would install new football field lighting for night events, consisting of two 90-foot standards on one side of the field and two 100-foot standards on the other.  The study estimated that about 15 night events would occur at the stadium per year, and it found that the only significant impact of the project could be noise, but that mitigation measures would be implemented to reduce the impact to less than significant.  Therefore, the Board concluded that the District did not have to prepare an EIR, and instead adopted a Mitigated Negative Declaration (“MND”) and a mitigation monitoring and reporting program.

To facilitate the Hoover Projects, the Board approved a resolution exempting the projects from the zoning and land use laws of the City of San Diego (“City”) under the provisions of Government Code section 53094.  A local nonprofit citizens’ group, Taxpayers for Accountable School Bond Spending (“Taxpayers”) sued the District, alleging four causes of action: 1) the Hoover Projects were an illegal misuse of funds, 2) the Board’s adoption of an MND instead of preparing an EIR violated CEQA, 3) the Hoover Projects violated the City’s zoning and land use laws, and 4) the District’s resolution exempting the projects from zoning and land use laws was overbroad, required CEQA review, and was invalid because nearby residents were entitled to adequate notice of the resolution.  The trial court dismissed all four causes of action, and Taxpayers appealed.

Decision

The Fourth District Court of Appeal reversed the trial court’s decision in part and determined that the District could not use bond proceeds for stadium lighting where that use was not listed in the project list and that the District was required to prepare an EIR for the stadium field lighting project.

Regarding the first cause of action, Taxpayers argued that the Hoover stadium lighting project was an illegal use of bond funds under California Constitution Article XIII A, section 1, subdivision (b)(3), also known as Proposition 39.  Proposition 39 allows a school facility bond ballot measure to be passed with only 55 percent voter approval, rather than a two-thirds majority, provided the measure meets certain accountability requirements.  One of the requirements is that the bond funds only be used for projects listed in the bond’s ballot measure.

Taxpayers argued that field lighting was not included in the measure’s project list for Hoover, and so according to Proposition 39, it was not authorized for funding under the San Diego bond measure. The appellate court examined the bond measure, which listed 26 projects for Hoover, including the bleacher renovation and the track and field upgrade for ADA compliance.  The court noted that stadium lights were not listed in Hoover’s portion of the project list.   However, field lighting was listed in a separate, more general section of the measure’s project list.  That general section of the list authorized funding for supporting site improvements incidental to and necessary for specifically listed projects.  The appellate court concluded that the erection of new stadium lights was not incidental to and necessary for bleacher renovation or the track and field ADA upgrades, and therefore, as Taxpayers argued, bond funding from the measure could not legally be used for the field lighting. 

The court also agreed with Taxpayers’ contention that the trial court erred in not finding that the District was required to prepare an EIR for the stadium field lighting project.  The court observed that CEQA permits preparation of an MND only if the record before the public agency contains no substantial evidence that the project may have significant environmental effects.  The court also stated that in reviewing the question of whether an EIR is required, “courts owe no deference to the lead agency’s determination” and that doubts are to be resolved “in favor of environmental review.”

However, along the way to agreeing with Taxpayers’ overall CEQA argument, the appellate court rejected a number of sub-arguments.  To begin with, the court rejected Taxpayers’ argument that the District’s Initial Study was misleading because it stated only about 15 night events per year would be held at the stadium after field lighting was installed.  The court stated that if the number of events exceeded the Initial Study estimate, the District could be required to perform additional CEQA review later.  The court similarly rejected Taxpayers’ argument that the field lighting itself would have a significant environmental impact, concluding that the limited number of night events and small number of nearby residences affected did not rise to the level of significance.  The court also declined to find that the neighborhood surrounding Hoover was an historic district protected under CEQA.  The court found no evidence in the record supporting that idea, rejecting a planning department map and a plan referring to the neighborhood as historic.  The court stated that this evidence failed to show that the City ever officially designated the neighborhood for listing in its historic district registry.  Further, even if the neighborhood were a historic district, the court concluded that Taxpayers failed to bring evidence demonstrating that the field lighting project would adversely affect it.  The court stated that evidence that contractors for prior school projects had damaged the neighborhood’s historic gates was insufficient to show a significant effect.

However, the appellate court agreed with Taxpayers argument that the field lighting project could have a significant impact on parking in the neighborhood and that parking impacts could constitute an environmental impact under CEQA.  The court observed that the Initial Study lacked any calculation of a baseline of existing attendance figures for Hoover football games, so it was impossible to make a proper comparison of the effects of night game attendance.  Further, the court found fault with the Initial Study’s estimates of future Hoover night game attendance, pointing out that the high school did not use game attendance data from the District’s five high schools that do have field lighting.  The parking analysis in the Initial Study calculated that the project would result in a 174-space parking shortage, but failed to ascertain the total number of off-site parking spaces in the area or the number of parking spaces available off-site during night events.

The District argued that impacts to parking are not an environmental effect under CEQA and cited San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656 (“SFUDP”), which stated that parking shortfalls were a “social inconvenience,” not an environmental impact, and that an “EIR need only address the secondary physical impacts that could be triggered by a social impact.”  The appellate court distinguished the circumstances in SFUDP, observing that in that case, it was the explicit policy of San Francisco to not provide for adequate parking in order to promote the use of public transit.  The appellate court disagreed and declined to follow SFUDP’s language on parking, finding that cars are physical objects with physical impacts, and that “as a general rule, we believe CEQA considers a project’s impact on parking . . . to be a physical impact that could constitute a significant effect on the environment.”  The court noted that CEQA Guidelines allow for consideration of social or economic effects related to a physical change, and that the Guidelines’ definition of “environment” includes man-made conditions as well as natural ones.  The court also found that the District’s traffic analysis was inadequate due to the lack of adequate baseline figures for game attendance.  Based on the potential significant effects on parking and traffic, the appellate court reversed the trial court decision and found that the District must prepare an EIR for the project.

The appellate court upheld the trial court decision dismissing Taxpayers’ third cause of action asserting the Hoover Projects violated the City’s zoning and land use laws.  Taxpayers argued that it had in effect won that cause of action when the Board adopted the zoning exemption resolution to put the school facilities projects outside the City zoning laws.  The appellate court pointed out that Taxpayers did not actually prevail because it did not gain the relief it sought:  it had not asked the trial court to exempt the project from zoning laws, it had asked the court to require the District to withdraw approval of the project.

Finally, the appellate court rejected Taxpayers’ fourth cause of action, which challenged the Board’s resolution to exempt the bond measure’s school facilities projects from the City’s zoning and land use laws under Government Code section 53094.  Section 53094 allows school boards to exempt certain proposed property uses from zoning ordinances.  The section does not apply to “nonclassroom facilities,” and the appellate court cited City of Santa Cruz v. Santa Cruz City School Bd. of Education (1989) 210 Cal.App.3d 1, for the interpretation that nonclassroom facilities means “those not directly used for or related to student instruction” and that stadium lighting is part of a high school’s classroom facilities for purposes of section 53094.

The court also dispensed with Taxpayers’ arguments that the zoning exemption was overbroad, subject to CEQA review, and required notice and an opportunity for a hearing to nearby residents.  The court rebuffed Taxpayers’ argument that the Board’s resolution was overbroad in including “educational facilities” rather than the “classroom facilities” phrase used in Government Code section 53094.  The court concluded that the distinction for section 53094 purposes focuses on whether the facilities will be used for educational purposes, meaning student instruction.  The court ruled that the resolution was not subject to CEQA because it was not a project approval and did not commit the District to a definite course of action.  Instead, the resolution was “merely one prerequisite,” and the District would be required to comply with CEQA for each of the projects covered by the resolution.  The court disagreed with Taxpayers characterization of the Board’s resolution as an adjudicative action requiring special notice to Hoover-area residents.  Further, the court stated that even if the Board’s resolution was an adjudicatory action, Taxpayers did not show that this action would deprive Hoover-adjacent residents of a significant deprivation of a property interest that would trigger due process requirements for notice and an opportunity to be heard. 

Topics:  ADA, CEQA, Environmental Impact Report, Funding, Public Schools

Published In: Civil Procedure Updates, Education Updates, Environmental Updates, Tax Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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