Impacts On Required Public Services Not An Environmental Impact; No Mitigation Required

by Sheppard Mullin Richter & Hampton LLP

City of Hayward et al. v. Board of Trustees of the California State University, A131412, A132424 (Cal. Ct. App., May 30, 2012) (certified for publication June 28, 2012).

[authors: Deborah Rosenthal and Nady Nikonova]

The Court of Appeal held that potential adverse impacts on required public services are not environmental impacts under CEQA requiring mitigation by the project proponent. This is contrary to the practice in many municipalities, which have treated the potential deterioration of public services based on applicable performance standards in the general plan or elsewhere (e.g., standards for fire, police, libraries and emergency services) as a significant impact requiring mitigation. While similar requirements may be defensible under a city's police power authority, this case holds they cannot be imposed under CEQA, at least insofar as the lead agency is otherwise required to provide such services.[1]

The City of Hayward and local community groups challenged the Board of Trustees’ certification of the EIR and approval of a master plan to expand the California State University’s East Bay campus in order to meet its assigned enrollment ceiling. The trial court sided with the city holding that the EIR did not adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands. In reversing the trial court in all respects except for the impact on parklands, the California Court of Appeal notably held that effects on the adequacy of fire protection are not impacts on the environment, and therefore, do not have to be mitigated under CEQA.

Fire Protection and Public Safety

The Court of Appeal reversed the trial court and held that the Trustees’ EIR adequately analyzed impacts on fire protection and public safety by focusing only on the environmental impact of building a new fire station.

The EIR determined that the City of Hayward would need eleven additional fire fighters and a new fire station to maintain response times and service levels for the increased campus population, but concluded that this would not result in significant environmental impacts because construction would be limited to the small area typically required for a fire station and would likely be located on an infill site within the City. The trial court found the EIR deficient because (a) it did not adequately analyze the construction’s environmental impact; and (b) it did not treat the plan’s effect on adequacy of fire protection services as an environmental impact. The Court of Appeal reversed.

The court acknowledged that: (a) a social or economic change related to a physical change may be considered in determining whether the physical change is significant; (b) delayed response times “may be a factor” in analyzing whether the increased campus population concentration is significant; and (c) an EIR must analyze the impact of delayed response times on public safety.

However, the court held that CEQA did not require the Trustees to mitigate the project’s impact on emergency response times. The court concluded that the EIR had adequately analyzed delayed response times and properly concluded that services could be maintained at an adequate level with an increase of personnel and a new facility. The court held that limiting the analysis in the EIR to the physical impacts of the construction of a new fire station and relying on the typical size and location for such facilities was “reasonable and sufficient” because “the need for additional fire protection is not an environmental impact,” and because it was impossible for the Trustees to know the precise location and size of the future fire station. The EIR had thus sufficiently analyzed the environmental impact of building the needed new fire station, and appropriately concluded that the impact of building the fire station would not likely be significant because of any such facility’s small footprint and likely location on an infill site in the City.

The court also held that the Trustees had no obligation under CEQA to mitigate for the City’s additional costs that would be incurred to avoid delayed response times, reasoning that it was the City’s obligation to provide emergency services regardless of CEQA:

“Although there is undoubtedly a cost involved in the provision of additional emergency services, there is no authority upholding the city’s view that CEQA shifts financial responsibility for the provision of adequate fire and emergency response services to the project sponsor. The city has a constitutional obligation to provide adequate fire protection services. Assuming the city continues to perform its obligations, there is no basis to conclude that the project will cause a substantial adverse effect on human beings.”

This case thus appears to set limits on the extent to which CEQA can be relied upon as a basis for requiring mitigation when a project fails to meet the lead agency’s performance standards, if the lead agency has a legal obligation to meet such standards regardless of CEQA.

Traffic and Parking

The Court of Appeal found that the EIR adequately analyzed impacts on traffic and parking. First, the Trustees properly deferred site-specific analysis of possible impacts on traffic from building faculty housing because they prepared a program EIR and not a project EIR. Since the site of the housing construction had not been chosen, the Trustees properly deferred analyzing site-specific impact on the small residential streets until the project is planned and a project EIR is prepared. Second, the court held that a transportation demand management (TDM) program is a permissible way to mitigate impacts caused by increased parking and traffic.

Air Quality

The EIR included a traffic demand management plan (TDM) that would reduce some, but not all, of the emissions. The EIR was nevertheless sufficient because neither the city nor the trial court suggested alternative mitigation and the TDM was sufficiently definite to set performances to which the Trustees committed.


The Court of Appeal agreed with the trial court that the EIR did not adequately analyze the impact on parklands and ordered the Trustees to re-analyze the project’s impact on specific parklands before certifying a revised EIR.

The Trustees’ EIR concluded that on-campus recreational offerings would offset student use of all regional parks. But, the EIR did not perform an impact analysis on the two parks closest to campus. The court found that evaluating the impact on the entire regional park district is too broad and that the EIR should analyze impacts on the two parks specifically. The court also critiqued the Trustees’ EIR for not having supporting data. Instead of relying on long-standing user patterns, the EIR should have determined the extent to which current students use the parks and extrapolated future park usage.

[1] Although not discussed in the opinion, it appears that the City was compelled to rely on CEQA in this case, as opposed to its police power, because the California State University system as a state instrumentality is exempt from local regulation when it is carrying out its educational mission.

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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