By William W. Abbott
Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (April 25, 2013, D060999) ___ Cal.App.4th ___.
The voters within the San Diego Unified School District passed a school bond measure to school facilities upgrades. The school board voted to use bond proceeds to install field lighting at Hoover High School. Neighbors, concerned with the increased traffic and parking conflicts resulting from nighttime events filed suit challenging the approval as an unauthorized use of bond proceeds and for improper reliance upon a negative declaration, among other claims. The trial court ruled for the District, and the neighbors (“Taxpayers”) appealed. The court of appeal reversed on the bond authorization claim, and reversed in part on the CEQA claim.
Unauthorized Expenditure. As its initial defense, the District argued that the appellants lacked standing. However, taxpayer standing is fairly liberal and this argument was rejected by the trial court. The substantive claim involved a comparison of the proposed expenditure for field lights against the list of funded activities set forth in the bond measure. As to this issue, the bond measure was relatively specific as to the list of authorized purposes. While field lighting was mentioned as an ancillary improvement to those purposes set forth as the primary uses of bond proceeds, the appellate court concluded that as applied to Hoover, the field lighting was not ancillary and part of the listed authorized expenditures, and therefore it was an improper use of bond proceeds.
Misleading Project Description. Appellants argued that the project description was misleading because there was no numeric cap on the number of nighttime events. The District had estimated 15 events a year, with the possibility of a few more events due to practices and playoffs (which the court interpreted as a range of 15-19 events per year.). The court accepted the District’s interpretation, finding that there was no requirement for a numeric cap and that use of the facilities in excess of the 15-19 range would trigger CEQA further review by the District.
Field Lighting. The record contained a detailed nighttime lighting analysis which concluded that the impacts would be less that significant. On this issue, the court, based upon an examination of the entire record concluded that there was not substantial evidence of a fair argument that the project would have an adverse impact on neighborhood character or that it would impact a substantial number of persons. The Taxpayers also argued as to the potential impacts to the surrounding historical neighborhood. The evidence, consisting of older studies however did not establish that the neighborhood possessed the requisite characteristics warranting protection under Public Resources Code section 21084.1.
Traffic and Parking. The mitigated negative declaration included a traffic study. In order to predict attendance, the consultant used the average attendance for all district high schools, based upon a percentage of students. The consultant then applied that ratio to the number of students at Hoover, but did not stress test the average against past attendance records for Hoover. This was an error.
Turning next to an allegation that the District failed to assess parking impacts, the appellate court rejected the District’s argument that it was not required to assess parking impacts, arguing that parking was not included in CEQA’s Appendix G, and that in any event, a lack of parking was a matter of “social inconvenience.” The appellate court distanced itself from in the holding in San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, concluding that parking impacts fell within the scope of CEQA.
The appellate court again agreed with the appellants that there was sufficient evidence of a fair argument of potential neighborhood traffic impacts, based upon the testimony of the neighbors regarding the narrow streets. The lack of a neighborhood traffic analysis worked against the lead agency as the court considered the “fair argument” test.
Zoning Exemption. As authorized by Government Code section 53094, the District elected to exempt from local zoning. As to this challenge, the appellate court rejected the Taxpayers’ complaints of lack of notice (only minimal notice is required), as well as over breadth. Taxpayers also urged that the exemption resolution was a “project” for CEQA purposes. Not so according to the appellate court. The resolution did not commit the District to any particular course of action, and was neither a “project” nor an “approval”.
Comment: The timing of this case is fortuitous given the current debate on CEQA reform. In the push for revitalizing existing centers, many communities will likely want to encourage land uses and regulatory requirements which are short on parking (such as what the City of Sacramento recently did in updating its downtown code) to create walkable communities. From that perspective, a parking shortage is a positive. CEQA historically protects the status quo which may in fact work against how our communities should evolve by posing the time and cost of an EIR as an impediment to re-investment .Hopefully we will see true reform in 2013, not just nibbling around the edges.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.