Taxpayers for Accountable School Bond Spending v. San Diego Unif. School Dist. CA4/1 , 156 Cal. Rptr. 3d 449 ( 2013 )

Filed 3/26/13 Taxpayers for Accountable School Bond Spending v. San Diego Unif. School Dist. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TAXPAYERS FOR ACCOUNTABLE D060999
SCHOOL BOND SPENDING,
Plaintiff and Appellant,
(Super. Ct. No.
v. 37-2011-00085714-CU-WM-CTL)
SAN DIEGO UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy
B. Taylor, Judge. Affirmed in part, reversed in part and remanded with directions.
Plaintiff Taxpayers for Accountable School Bond Spending (Taxpayers) appeals a
judgment entered against it in its action against defendant San Diego Unified School
District (District) arising out of Proposition S and District's approval of installation of
new stadium field lighting and other improvements at Hoover High School (Hoover). In
its operative first amended complaint against District, Taxpayers alleged four causes of
action: (1) a Code of Civil Procedure section 526a cause of action for waste and misuse
of Proposition S funds; (2) a California Environmental Quality Act (CEQA) cause of
action for District's wrongful adoption of a mitigated negative declaration for the project
at Hoover; (3) a cause of action for District's violation of the City of San Diego's (City)
zoning and land use laws; and (4) a cause of action for District's violation of Government
Code section 53094 by exempting the Hoover project and certain other high school
projects from City's zoning and land use laws. On appeal, Taxpayers generally contends
the trial court erred because: (1) Proposition S did not specifically list or otherwise
include field lighting for Hoover or other schools for funding from bond proceeds; (2)
there is substantial evidence in the administrative record that the Hoover project may
have a significant effect on the environment within the meaning of CEQA; and (3)
District's resolution pursuant to Government Code section 53094 exempting Hoover and
other high schools from City's zoning and land use laws is invalid because inadequate
notice was given, the exemption of classroom and nonclassroom facilities is overbroad,
and that exemption action is a project requiring compliance with CEQA.
FACTUAL AND PROCEDURAL BACKGROUND
On July 23, 2008, District's Board of Education (Board) approved a resolution to
place on the November 4, 2008, election ballot a proposition (Proposition S) to authorize
District to sell up to $2.1 billion in general obligation bonds for the construction,
reconstruction, rehabilitation, or replacement of school facilities as listed or otherwise
described in Exhibit A attached to the resolution, which set forth the full text of
Proposition S. Proposition S is entitled "San Diego School Repair and Safety Measure"
2
and contains a list of specific projects for Hoover, including projects to
"[r]enovate/replace stadium bleachers, including press box" and to "[u]pgrade fields,
track, and courts for accessibility compliance." On November 4, 2008, voters approved
Proposition S.1
Soon thereafter, District began the CEQA review process for a proposed project to
upgrade Hoover athletics facilities, including football stadium bleacher replacement and
new lighting for the football field. In or about October 2010, District completed an initial
study of the project under CEQA (Initial Study). The Initial Study described the
proposed project (Project) as including "the construction and operation of upgraded
athletic facilities on the Hoover High School campus in the City of San Diego. . . . In
addition to upgrading the athletic facilities, the proposed project would include the
installation of additional parking spaces, stadium lighting, and provide Americans with
Disabilities Act (ADA) compliant facilities." (Italics added.) The Project would replace
the football and track field home and visitor side bleachers and reduce the home side
bleachers from 4,190 seats to 2,796 seats and the visitor side bleachers from 1,445 seats
to 1,174 seats. The Project would also "[i]nstall new lighting for the football field (two
100 foot light standards on south side of football field and two 90 foot light standards on
north side of football field). The field lighting would be focused and directed at the field
1 Although the parties do not cite, and the record does not appear to contain, any
document showing the results of the Proposition S vote, the parties represent that the
voters approved Proposition S, presumably by at least the 55 percent minimum vote
required by article XIII A, section 1 of the California Constitution (Proposition 39).
Accordingly, for purposes of this opinion, we presume the voters approved Proposition S.
3
area during school events, including sporting events (i.e., football, soccer, track) that
occur after dusk. It is anticipated that field lighting will be dimmed at the conclusion of
the event and after all patrons have safely exited the facility (estimated at 9:00 p.m.).
Subsequently, the facility would be cleaned and the field lights will be extinguished
(estimated at 10:00 p.m.)[.]" Furthermore, the Project included installation of a new
public announcement (PA) system and construction of a 268-foot long, 11-foot high
concrete masonry wall on the north side of the visitor bleachers parallel to Monroe
Avenue, which wall would "serve to visually screen the bleachers from the surrounding
neighborhood." The Project would also increase the number of on-campus parking
spaces from 167 spaces to 223 spaces. Regarding the anticipated usage of the athletic
facilities, the Initial Study stated:
"Existing events conducted on the football field that were possible
only during daylight hours or with temporary lights could now occur
in the evening. These existing events include football, boys and girls
soccer, and track and field. The District anticipates that
approximately 15 evening events would occur with implementation
of the [Project]. The traffic and crowd control measures currently in
place for events at the school will be implemented for evening
events made possible by the installation of stadium lighting, as
determined necessary by school officials. The District notes that due
to routine practices and the potential for unforeseen events, such as
playoff games, a few more events may occur. . . ."
James Watts, District's director of planning, signed the Initial Study finding that noise
was the only potentially significant impact of the Project on the environment and
revisions were made to reduce that impact to less than significant. He stated that a
mitigated negative declaration would be prepared for the Project.
4
On October 15, 2010, District published a notice of intent to adopt a mitigated
negative declaration (MND) for the Project. A draft MND was made available to the
public, which had 30 days to submit written comments regarding the draft MND. On
October 25, District held a community meeting to discuss the Project and receive public
input. District received, and prepared responses to, comment letters regarding the
Project.
On January 11, 2011, the Board adopted a resolution finding there is no substantial
evidence the Project, as mitigated, would have a significant effect on the environment.
The Board also adopted the Initial Study and the MND, along with the mitigation
monitoring and reporting program (MMRP) for the Project. On January 12, District filed
a notice of determination with the County of San Diego, stating: (1) it had approved the
Project; (2) the Project will not have a significant effect on the environment; (3) a
negative declaration had been prepared for the Project; (4) mitigation measures were
made a condition of approval of the Project; and (5) an MMRP was adopted for the
Project.
On May 10, 2011, the Board approved a resolution pursuant to Government Code
section 53094 exempting projects at Hoover and 11 other high schools, along with the
school sites of those 12 high schools, from City's zoning and land use laws. On May 12,
District served City with notice of its exemption action.
In February 2011, Taxpayers filed the instant action against District. In July 2011,
Taxpayers filed its operative first amended complaint against District, alleging the four
causes of action described above. The trial court set the hearing on the CEQA cause of
5
action for August 25 and the hearing on the non-CEQA causes of action for September
30. On September 27, the court issued a statement of decision dismissing Taxpayers's
CEQA cause of action. On October 26, the court issued a statement of decision
dismissing Taxpayers's non-CEQA causes of action. The trial court then entered
judgment for District. Taxpayers timely filed a notice of appeal.
DISCUSSION
I
Proposition S
Taxpayers contends the trial court erred by dismissing its first cause of action
because Proposition S did not specifically list or otherwise include field lighting for
Hoover or other schools to be funded from bond proceeds, as required by the California
Constitution for school facility bonds under Proposition 39.
A
" 'The usual method of funding new school construction in California has been for
school districts to obtain voter approval for the issuance of general obligation bonds. . . .
The bonds are repaid by an annual levy of an ad valorem tax on real (and certain
personal) property located within the area of the district.' " (San Lorenzo Valley
Community Advocates for Responsible Education v. San Lorenzo Valley Unified School
Dist. (2006) 139 Cal.App.4th 1356, 1395 (San Lorenzo).) Article XIII A, section 1,
subdivision (b), of the California Constitution provides an exception to the 1 percent ad
valorem tax limit on real property to the extent certain bonds are approved by the voters,
including:
6
"(2) Bonded indebtedness for the acquisition or improvement of real
property approved on or after July 1, 1978, by two-thirds of the
votes cast by the voters voting on the proposition.
"(3) Bonded indebtedness incurred by a school district . . . for the
construction, reconstruction, rehabilitation, or replacement of school
facilities, including the furnishing and equipping of school facilities,
or the acquisition or lease of real property for school facilities,
approved by 55 percent of the voters of the district . . . voting on the
proposition on or after the effective date of the measure adding this
paragraph. This paragraph shall apply only if the proposition
approved by the voters and resulting in the bonded indebtedness
includes all of the following accountability requirements:
"(A) A requirement that the proceeds from the sale of the bonds be
used only for the purposes specified in Article XIII A, Section
1(b)(3), and not for any other purpose, including teacher and
administrator salaries and other school operating expenses.
"(B) A list of the specific school facilities projects to be funded and
certification that the school district board . . . has evaluated safety,
class size reduction, and information technology needs in developing
that list.
"(C) A requirement that the school district board . . . conduct an
annual, independent performance audit to ensure that the funds have
been expended only on the specific projects listed.
"(D) A requirement that the school district board . . . conduct an
annual, independent financial audit of the proceeds from the sale of
the bonds until all of those proceeds have been expended for the
school facilities projects." (Italics added.)
California Constitution, article XIII A, section 1, subdivision (b)(3), was added when
California voters passed Proposition 39 on November 7, 2000. (Prop. 39, § 4, as
approved by voters, Gen. Elec. (Nov. 7, 2000); Cal. Const., art. XXX A, § 1, subd.
(b)(3).) Prior to November 2000, school districts, like other government agencies, were
required to attain a two-thirds vote for bonds to acquire or improve real property. (Cal.
7
Const., art. XIII A, § 1, subd. (b)(2); Foothill-De Anza Community College Dist. v.
Emerich (2007) 158 Cal.App.4th 11, 19.) Proposition 39, also known as the "Smaller
Classes, Safer Schools, and Financial Accountability Act," reduced the required voter
approval from two-thirds to 55 percent for a school facility bond proposition that satisfies
its requirements, as quoted above. (Prop. 39, § 4, as approved by voters, Gen. Elec.
(Nov. 7, 2000); Cal. Const., art. XIII A, § 1, subd. (b)(3); Foothill, at p. 19.) Education
Code sections 15264 through 15284 implement Proposition 39. (San Lorenzo, supra, 139
Cal.App.4th at p. 1396, fn. 9; Foothill, at p. 20.)
B
"In interpreting a voter initiative, we apply the same principles that govern our
construction of a statute. [Citation.] We turn first to the statutory language, giving the
words their ordinary meaning. [Citation.] If the statutory language is not ambiguous,
then the plain meaning of the language governs. [Citation.] If, however, the statutory
language lacks clarity, we may resort to extrinsic sources, including the analyses and
arguments contained in the official ballot pamphlet, and the ostensible objects to be
achieved." (People v. Lopez (2005) 34 Cal.4th 1002, 1006.) We apply the same rules
when interpreting constitutional and statutory provisions. (See, e.g., Committee for
Responsible School Expansion v. Hermosa Beach City School Dist. (2006) 142
Cal.App.4th 1178, 1186 (Hermosa).) "If the language is clear and unambiguous[,] there
is no need for construction, nor is it necessary to resort to indicia of the intent . . . of the
voters . . . ." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) Furthermore,
"[c]ourts should interpret statutes or written instruments so as to give force and effect to
8
every provision and not in a way which would render words or clauses nugatory,
inoperative or meaningless." (Hermosa, at p. 1189.)
Because interpretation of a constitutional provision or voter initiative is a question
of law, we perform that interpretation de novo, or independently, and are not bound by
the trial court's analysis or conclusion. (Apartment Assn. of Los Angeles County, Inc. v.
City of Los Angeles (2001) 24 Cal.4th 830, 836 [independent interpretation of voter
initiative as a question of law]; cf. Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494,
1502 [independent interpretation of statute as a question of law].)
C
The November 2008 election ballot included the following description of
Proposition S:
"SAN DIEGO SCHOOL REPAIR AND SAFETY MEASURE. To
improve every neighborhood school by[:] repairing outdated student
restrooms, deteriorated plumbing and roofs; upgrading
career/vocational classrooms and labs; providing up-to-date
classroom technology; improving school safety/security; replacing
dilapidated portable classrooms; upgrading fire alarms; and
removing hazardous substances; shall San Diego Unified School
District issue $2,100,000,000 in bonds at legal interest rates,
requiring independent citizen oversight, annual audits, NO money
for administrators, and bonds issued only if NO estimated tax rate
increase?"
The voters' pamphlet included the full text of Proposition S. Proposition S stated its
purpose was "[t]o provide financing for the specific school facilities projects listed in the
Bond Project List below." It required District to "establish an independent Citizens'
Oversight Committee . . . to ensure bond proceeds are spent only for the school facilities
projects listed in the Bond Project List" and "conduct an annual, independent
9
performance audit to ensure that the bond proceeds have been expended only on the
school facilities projects listed in the Bond Project List."
Proposition S then set forth its "Bond Project List," consisting of two parts. Part
One of the Bond Project List authorized: (1) each school site to allocate $150 per student
of bond proceeds to be spent on qualified, permitted projects; and (2) specific projects "to
be completed at each or any of the District's sites." Those specific projects to be
completed at all school sites under Part One included: (1) certain improvements to
support student health, safety, and security (e.g., "[p]rovide school site security
improvements, including increased lighting, and vandalism and intrusion safeguards");
(2) certain projects to improve school accessibility and code compliance upgrades (e.g.,
"[m]odernize and renovate physical education facilities, playgrounds and fields for
accessibility and safety"); and (3) certain improvements to support student learning and
instruction.
In addition to the specific projects generally authorized for all schools in Part One,
Part Two listed specific projects authorized to be completed for particular school sites.
Part Two of Proposition S authorized 26 specific projects to be completed at Hoover,
including:
"Projects to Improve School Accessibility, Code Compliance
Upgrades
 Renovate existing restrooms and locker rooms
 Renovate gymnasium building to meet accessibility
regulations
 Provide accessible, compliant wrestling room
10
 Improve accessibility to all classrooms, labs, restrooms, and
other school facilities to comply with accessibility
regulations, including ADA Titles I & II
 Install three-compartment sink and hand sink in kitchen
 Renovate/replace stadium bleachers, including press box
 Upgrade fields, track, and courts for accessibility compliance
 Build new two-story classroom building to replace old
portable classrooms
 Provide accessible restrooms with storage for athletic
equipment" (Italics added.)
After listing specific projects for particular school sites, Part Two set forth three
additional projects that were not for particular sites.2
Most importantly for this appeal, Proposition S then authorized bond proceeds to
be used for election, bond, construction and other costs incidental to and necessary for
completion of its listed projects, stating:
"Each project listed is assumed to include its share of costs of the
election and bond issuance and other construction-related costs, such
as construction management, architectural, engineering, inspection
and other planning costs, legal, accounting and similar fees,
independent annual financial and performance audits, a customary
construction contingency, and other costs incidental to and
necessary for completion of the listed projects (whether work is
performed by the District or by third parties), including: [¶] . . . [¶]
 Repair, upgrade, modify, expand, refinish, replace and
construct site improvements, including off-street parking
areas, pickup/dropoff, signage, paths, sidewalks and
walkways, canopies, hard courts (student play areas), athletic
2 Those additional projects to be completed were: (1) "[p]rovide matching funds to
construct classrooms and schools to accommodate enrollment growth for new housing
developments in the Miramar area;" (2) "[r]etrofit and build classrooms, labs and
facilities to improve specialized instruction;" and (3) "[p]rovide matching funds to
construct classrooms and schools in the downtown area to meet educational needs of the
[D]istrict."
11
play fields, landscaping, irrigation, permanent athletic field
equipment and facilities (including nets, basketball standards,
goals and goalposts, backstops), field lighting, etc." (Italics
added.)
D
Taxpayers contends the trial court erred by interpreting Proposition S as
specifically including and authorizing new field lighting for Hoover's football stadium.
Based on our independent interpretation of the plain language of Proposition S, we agree
the court so erred.
We italicized above Proposition S's relevant, and ultimately dispositive, language.
In support of its position that field lighting is specifically listed and authorized by
Proposition S, District relies solely on the words "field lighting" contained in the last
paragraph of Part Two. However, contrary to District's apparent assertion, those words
do not stand alone as an independently listed project for Hoover and all other school sites.
Rather, the words "field lighting" must be read in the context of all the language of
Proposition S and, in particular, Part Two. District does not assert, and could not
reasonably assert, there is any provision in Part One that could reasonably be interpreted
as including, either expressly or implicitly, new stadium lighting for Hoover.
Accordingly, we examine the language of Part Two to determine whether it could support
District's proposed interpretation. As noted above, Part Two lists specific projects to be
completed for particular school sites. Regarding Hoover, Part Two specifically lists two
projects relating to its football stadium: "[r]enovate/replace stadium bleachers, including
press box" and "[u]pgrade fields, track, and courts for accessibility compliance." The
12
first project relates to the stadium's bleachers and press box. The plain and ordinary
meaning of "bleachers" is the structure that provides seating for those who attend stadium
events.3 The renovation or replacement of the stadium's seating does not expressly
include lighting for the field, and it cannot reasonably be argued that field lighting is
implicitly included in that project. Likewise, it cannot reasonably be argued that field
lighting is expressly or implicitly included in the renovation or replacement of the
stadium's press box.
Regarding the second project relating to Hoover's football stadium, Part Two of
Proposition S specifically authorizes the use of bond proceeds to "[u]pgrade fields, track,
and courts for accessibility compliance." As that language pertains to Hoover's football
field, the plain and clear meaning of Part Two authorizes the use of bond funds to
upgrade the football field "for accessibility compliance." Part Two does not authorize a
"general" or nonspecific upgrading of the football field, which arguably could include the
addition of new field lighting. Rather, the qualifying phrase "for accessibility
compliance" places a specific limitation on the nature and extent of the upgrade to the
football field. Any upgrade to the football field must be "for accessibility compliance,"
which, in general, means compliance with ADA laws and regulations so that disabled
persons can access and use the field as required by law. District does not cite, and we are
not aware of, any ADA law or regulation that could reasonably be construed as requiring
3 Because it is common knowledge what "bleachers" are, we need not further
describe them.
13
football field lighting as proposed in the Project (i.e., two 90-foot standards and two 100-
foot standards with a total of 60 luminaires that each produce an average of 134,000
lumens). Therefore, it cannot reasonably be argued that field lighting is expressly or
implicitly included in the upgrading of the football field for accessibility compliance, as
specifically listed in and authorized by Part Two.
Because the projects specifically listed in and authorized by Part Two for Hoover's
football stadium, as well as the projects specifically listed and authorized by Part One for
all school sites, as we concluded above, do not include stadium field lighting, we look to
other language in Proposition S that arguably could authorize that lighting. The only
other language in Proposition S that arguably could support funding for Hoover's new
field lighting, and the only language on which District relies, are the words "field
lighting" contained in the last paragraph of Part Two. However, those words do not stand
alone in that paragraph as an independent, or separately listed, project. Rather, as quoted
above, those words are preceded by language in that paragraph that plainly and clearly
indicates "field lighting" is authorized only to the extent it is "incidental to and necessary
for completion of the listed projects." After deleting irrelevant language from that
paragraph, it provides: "Each project listed is assumed to include . . . other costs
incidental to and necessary for completion of the listed projects . . . , including [¶] . . . [¶]
. . . field lighting." (Italics added.) Therefore, to the extent Proposition S did not
expressly include certain costs in its prior authorization of specifically listed projects,
Part Two's final paragraph authorizes the use of bond funds to pay for "other costs
incidental to and necessary for completion of the listed projects." Those "other costs"
14
directly relate to, and are based on, the projects specifically listed in Proposition S.
Furthermore, those "other costs" are authorized by Proposition S only to the extent those
costs are "incidental to and necessary for completion of" the specifically listed projects.
In this context, we conclude the only reasonable interpretation of the words "field
lighting" in the final paragraph of Part Two is the authorization to use bond funds to pay
for "field lighting" costs "incidental to and necessary for completion of" the projects
specifically listed in Proposition S. In the instant matter, the use of bond funds to pay for
"field lighting" for Hoover's football stadium would be authorized only if that lighting
was incidental to and necessary for completion of a project specifically listed in
Proposition S for Hoover. Contrary to District's assertion, new "field lighting" for
Hoover's football stadium is not an independent, specifically listed project of its own in
Proposition S. Rather, "field lighting" must be tethered to, and based on, a listed project
expressly authorized elsewhere in Proposition S. Absent that tether, the use of
Proposition S bond proceeds to pay for "field lighting" is not authorized for Hoover's
football stadium. Based on our reading of Proposition S, there is no listed project for
Hoover that provides that tether and authorizes funding for field lighting. Part Two does
not specifically list any project to which field lighting could be tethered under the final
paragraph of Part Two. As discussed above, Part Two specifically lists certain projects
for Hoover, including: "[r]enovate/replace stadium bleachers, including press box" and
"[u]pgrade fields . . . for accessibility compliance." Neither of those specifically listed
projects can reasonably be construed as including field lighting as "incidental to and
necessary for [their] completion." Field lighting is not incidental to and necessary for the
15
completion of the renovation or replacement of the stadium bleachers or the press box.
Likewise, field lighting is not incidental to and necessary for the completion of the
upgrading of the football field for accessibility compliance. We conclude Proposition S
does not authorize the use of bond funds to pay for new field lighting for Hoover's
football stadium or for other high schools' stadiums for which Proposition S did not
specifically list field lighting as part of their projects. The trial court erred by concluding
otherwise and dismissing Taxpayers's first cause of action.
E
District asserts Taxpayers did not have standing to challenge its use of Proposition
S bond funds to pay for new field lighting for Hoover's football stadium. District argues
Taxpayers lacks standing under Education Code section 15284, subdivision (a), because
it has not alleged any individual harm.
However, Taxpayers's first amended complaint did not assert standing under
Education Code section 15284, subdivision (a), but rather Code of Civil Procedure
section 526a. That statute provides:
"An action to obtain a judgment, restraining and preventing any
illegal expenditure of, waste of, or injury to, the estate, funds, or
other property of a county, town, city or city and county of the state,
may be maintained against any officer thereof, or any agent, or other
person, acting in its behalf, either by a citizen resident therein, or by
a corporation, who is assessed for and is liable to pay, or within one
year before the commencement of the action, has paid, a tax
therein. . . ."
In its first amended complaint, Taxpayers alleged it "is a not-for-profit registered
fictitious business entity . . . and is intended to operate as a tax exempt nonprofit
16
corporation, which along with its members and supporters, [who] reside within [City] and
within the boundaries of the District, are residents and taxpayers within said geographical
area of the District and have paid taxes within at least the last fiscal and calendar tax
years." Taxpayers further alleged it had "standing to enforce such laws that are designed
to control the expenditure of public-approved school bond money and protect and enjoin
against inappropriate use of said moneys."
District does not argue Taxpayers's members would not have standing as
individuals to assert the instant cause of action, but rather that Taxpayers, as a
representative organization, does not have standing because it does not pay taxes as an
organization. However, District does not cite, and we are not aware of, any case that
holds a representative organization cannot bring a taxpayer action under Code of Civil
Procedure section 526a or a citizen action if that organization represents members who,
as individuals, would have standing to personally bring that cause of action. On the
contrary, it has been held a representative organization or association may have standing
to bring an action if its members would have had standing to bring that action as
individuals. (Driving Sch. Assn. of Cal. v. San Mateo Union High Sch. Dist. (1992) 11
Cal.App.4th 1513, 1517.) Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 29,
stated:
"Code of Civil Procedure section 526a permits a taxpayer to bring
an action to restrain or prevent an illegal expenditure of public
money. No showing of special damage to a particular taxpayer is
required as a requisite for bringing a taxpayer suit. [Citation.]
Rather, taxpayer suits provide a general citizen remedy for
controlling illegal governmental activity. [Citation.]
17
"Citizen suits may be brought without the necessity of showing a
legal or special interest in the result where the issue is one of public
right and the object is to procure the enforcement of a public duty.
[Citation.] Citizen suits promote the policy of guaranteeing citizens
the opportunity to ensure that governmental bodies do not impair or
defeat public rights. [Citation.]
"Taxpayer suits and citizen suits are closely related concepts of
standing. [Citation.] The chief difference is a taxpayer suit seeks
preventative relief, to restrain an illegal expenditure, while a citizen
suit seeks affirmative relief, to compel the performance of a public
duty. [Citation.] Where standing appears under either rule, the
action may proceed regardless of the label applied by the plaintiff."
(Italics added.)
Furthermore, "[t]he primary purpose of [Code of Civil Procedure section 526a],
originally enacted in 1909, is to 'enable a large body of the citizenry to challenge
governmental action which would otherwise go unchallenged in the courts because of the
standing requirement.' [Citation.] [¶] California courts have consistently construed
[Code of Civil Procedure] section 526a liberally to achieve this remedial purpose."
(Blair v. Pitchess (1971) 5 Cal.3d 258, 267-268.) Liberally construing Code of Civil
Procedure section 526a, we conclude Taxpayers has standing to bring the instant cause of
action on behalf of its members who are residents of City and District and are taxpayers.
(Cf. Los Altos Property Owners Assn. v. Hutcheon (1977) 69 Cal.App.3d 22, 24
[unincorporated association of property owners brought Code of Civil Procedure section
526a taxpayer action against school district]; Hermosa, supra, 142 Cal.App.4th at pp.
1181, 1186 [taxpayers' committee, apparently an unincorporated association, brought
Education Code section 15284 action against school district to enjoin spending
Proposition 39 bond proceeds on school gymnasium]; Common Cause v. Board of
18
Supervisors (1989) 49 Cal.3d 432, 439-440 [plaintiffs had sufficient interest as citizens to
bring action for injunction].)
Because Taxpayers correctly alleged it had standing under Code of Civil
Procedure section 526a, we need not address whether it also had standing on other
grounds. We need not address District's assertion that Taxpayers did not have standing
under Education Code section 15284, subdivision (a),4 to challenge Proposition S. In
any event, we note Education Code section 15284, subdivision (c), provides that actions
challenging the expenditure of Proposition 39 bond funds may also be brought under
other laws.5 Because Education Code section 15284 does not provide the exclusive
means for Taxpayers to challenge District's use of Proposition S bond funds, Taxpayers
could properly bring, and had standing to bring, a taxpayer action under Code of Civil
Procedure section 526a to challenge District's use of Proposition S bond funds.6
4 Education Code section 15284, subdivision (a), provides: "An action to obtain an
order restraining and preventing any expenditure of funds received by a school district
. . . through the sale of bonds authorized by this chapter pursuant to paragraph (3) of
subdivision (b) of Section 1 of Article XIII A of the California Constitution . . . may be
maintained against any officer, agent, or other person acting on behalf of, that school
district . . . , by a citizen residing in the school . . . district who is assessed and is liable to
pay an ad valorem tax on real property within the school . . . district, or who has paid an
ad valorem tax on real property within the school . . . district within one year before the
commencement of the action . . . ."
5 Education Code section 15284, subdivision (c), provides: "The rights, remedies, or
penalties established by this section are cumulative to the rights, remedies, or penalties
established under other laws, including subdivision (a) of Section 526 of Chapter 3 of
Title 7 of Part 2 of the Code of Civil Procedure."
6 Based on the same reasoning, we need not address District's argument that it was
not a proper defendant under Education Code section 15284, subdivision (a). In any
19
II
CEQA
Taxpayers contends the trial court erred by dismissing its second cause of action
alleging District violated CEQA because there is substantial evidence in the
administrative record that the Project may have a significant effect on the environment.
Taxpayers also asserts the MND's description of the Project was inaccurate and
misleading.
A
General Principles. "CEQA is a comprehensive scheme designed to provide long-
term protection to the environment. [Citation.] In enacting CEQA, the Legislature
declared its intention that all public agencies responsible for regulating activities
affecting the environment give prime consideration to preventing environmental damage
when carrying out their duties. [Citations.] CEQA is to be interpreted 'to afford the
fullest possible protection to the environment within the reasonable scope of the statutory
language.' " (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105,
112.)
"CEQA requires a governmental agency [to] prepare an environmental impact
report (EIR) whenever it considers approval of a proposed project that 'may have a
significant effect on the environment.' ([Pub. Resources Code,] § 21100, italics added.)
event, we doubt that statute should be interpreted so narrowly as to preclude an action
against the entity (e.g., school district) allegedly improperly spending Proposition 39
bond funds.
20
In addition to the intent to require governmental decision makers to consider the
environmental implications of their decisions, the Legislature in enacting CEQA also
intended to provide certain substantive measures for protection of the environment.
[Citations.] In particular, one court noted [Public Resources Code] section 21002
requires public agencies 'to deny approval of a project with significant adverse effects
when feasible alternatives or feasible mitigation measures can substantially lessen such
effects.' [Citation.] [¶] If there is no substantial evidence a project 'may have a
significant effect on the environment' or the initial study identifies potential significant
effects, but provides for mitigation revisions which make such effects insignificant, a
public agency must adopt a negative declaration to such effect and, as a result, no EIR is
required. [Citations.] However, the Supreme Court has recognized that CEQA requires
the preparation of an EIR 'whenever it can be fairly argued on the basis of substantial
evidence that the project may have significant environmental impact.' (No Oil, Inc. v.
City of Los Angeles (1974) 13 Cal.3d 68, 75 . . . ; see also Laurel Heights Improvement
Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123 . . . .) Thus, if
substantial evidence in the record supports a 'fair argument' significant impacts or effects
may occur [and will not be mitigated], an EIR is required and a negative declaration
cannot be certified." (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas
(1994) 29 Cal.App.4th 1597, 1601-1602, fn. omitted.) CEQA "creates a low threshold
requirement for initial preparation of an EIR and reflects a preference for resolving
doubts in favor of environmental review [i.e., an EIR] . . . ." (Sierra Club v. County of
Sonoma (1992) 6 Cal.App.4th 1307, 1316-1317 (Sierra Club).)
21
"A negative declaration is a written statement that briefly explains why a project
will not have a significant environmental impact and therefore will not require an EIR.
[Citation.] A negative declaration is proper only if the agency determines based on an
initial study that there is no substantial evidence that the project may have a significant
effect on the environment. [Citations.] If an initial study shows that the project may
have a significant effect on the environment, a mitigated negative declaration may be
appropriate. A mitigated negative declaration is proper, however, only if project
revisions would avoid or mitigate the potentially significant effects identified in an initial
study 'to a point where clearly no significant effect on the environment would occur, and
. . . there is no substantial evidence in light of the whole record before the public agency
that the project, as revised, may have a significant effect on the environment.' " (Mejia v.
City of Los Angeles (2005) 130 Cal.App.4th 322, 330-331 (Mejia).) In that context,
"may" means a reasonable possibility of a significant effect on the environment. (Pub.
Resources Code, §§ 21082.2, subd. (a), 21100, 21151, subd. (a); Pocket Protectors v.
City of Sacramento (2004) 124 Cal.App.4th 903, 927 (Pocket Protectors); League for
Protection of Oakland's etc. Historic Resources v. City of Oakland (1997) 52 Cal.App.4th
896, 904-905.)
A " 'significant effect on the environment' means a substantial, or potentially
substantial, adverse change in the environment." (Pub. Resources Code, § 21068.) The
CEQA Guidelines (Cal. Code of Regs., tit. 14, § 15000 et seq.; hereafter Guidelines)
define "[s]ignificant effect on the environment" as "a substantial, or potentially
substantial, adverse change in any of the physical conditions within the area affected by
22
the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of
historic or aesthetic significance. An economic or social change by itself shall not be
considered a significant effect on the environment. A social or economic change related
to a physical change may be considered in determining whether the physical change is
significant."7 (Guidelines, § 15382.) " 'Substantial evidence' . . . means 'enough relevant
information and reasonable inferences from this information that a fair argument can be
made to support a conclusion, even though other conclusions might also be reached."
(Guidelines, § 15384, subd. (a).) Substantial evidence "shall include facts, reasonable
assumptions predicated upon facts, and expert opinion supported by facts." (Guidelines,
§ 15384, subd. (b).) "Argument, speculation, unsubstantiated opinion or narrative,
evidence which is clearly erroneous or inaccurate, or evidence of social or economic
impacts which do not contribute to or are not caused by physical impacts on the
environment does not constitute substantial evidence." (Guidelines, § 15384, subd. (a).)
"The fair argument standard is a 'low threshold' test for requiring the preparation
of an EIR. [Citations.] It is a question of law, not fact, whether a fair argument exists,
and the courts owe no deference to the lead agency's determination. Review is de novo,
with a preference for resolving doubts in favor of environmental review. [Citations.] [¶]
7 The Guidelines define the "environment" as "the physical conditions which exist
within the area which will be affected by a proposed project including land, air, water,
minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.
The area involved shall be the area in which significant effects would occur either
directly or indirectly as a result of the project. The 'environment' includes both natural
and man-made conditions." (Guidelines, § 15360; see Pub. Resources Code, § 21060.5.)
23
Although our review [of the agency's and trial court's decisions] is de novo and
nondeferential, however, we must ' "giv[e] [the lead agency] the benefit of [the] doubt on
any legitimate, disputed issues of credibility." ' [Citations.] . . . [¶] Relevant personal
observations of area residents on nontechnical subjects may qualify as substantial
evidence for a fair argument. [Citations.] So may expert opinion if supported by facts,
even if not based on specific observations as to the site under review. [Citation.] . . . [¶]
. . . [M]ere argument, speculation, and unsubstantiated opinion, even expert opinion, is
not substantial evidence for a fair argument. [Citations.] . . . Neither is the mere
possibility of adverse impact on a few people, as opposed to the environment in general."
(Pocket Protectors, supra, 124 Cal.App.4th at pp. 928-929, fn. omitted.) On appeal, we
review the trial court's findings and conclusions de novo. (Mejia, supra, 130 Cal.App.4th
at p. 332.)
In determining de novo whether there is substantial evidence to support a fair
argument that a proposed project may have a significant effect on the environment, "we
limit our review to evidence in the administrative record [i.e., the whole record before the
public agency]." (Architectural Heritage Assn. v. County of Monterey (2004) 122
Cal.App.4th 1095, 1111 (Architectural Heritage); see also Pub. Resources Code,
§§ 21064.5, 21080, subds. (c) & (d), 21082.2, subds. (a) & (d).) Our review "shall extend
only to whether there was a prejudicial abuse of discretion. Abuse of discretion is
established if the agency has not proceeded in a manner required by law or if the [public
agency's] determination or decision is not supported by substantial evidence." (Pub.
Resources Code, § 21168.5.) "A court reviewing an agency's decision not to prepare an
24
EIR in the first instance must set aside the decision if the administrative record contains
substantial evidence that a proposed project might have a significant environmental
impact; in such a case, the agency has not proceeded as required by law." (Sierra Club,
supra, 6 Cal.App.4th at p. 1317.)
B
Number of Events. Taxpayers first asserts District's negative declaration was an
abuse of discretion because its description of the Project in the Initial Study was
misleading to the general public and the Board. Taxpayers argues that description of the
anticipated number of evening events was misleading and caused District to
underestimate, or inadequately address, the Project's potential environmental effects.8
Regarding the Project's anticipated events and attendance at the stadium, the Initial
Study stated:
"Existing events conducted on the football field that were possible
only during daylight hours or with temporary lights could now occur
in the evening. These existing events include football, boys and girls
soccer, and track and field. The District anticipates that
approximately 15 evening events would occur with implementation
of the [Project]. . . . The District notes that due to routine practices
and the potential for unforeseen events, such as playoff games, a few
more events may occur. . . ."9 (Italics added.)
8 Taxpayers also challenges the Initial Study's description of the change in
attendance at Hoover football stadium events from the baseline attendance before the
Project to the expected attendance were the Project to be completed. We address that
issue below in the section on traffic and parking effects.
9 Although the Initial Study did not state the period of time over which those 15
events would occur, the parties presume, and we believe it can be reasonably implied,
that the Initial Study intended to state approximately 15 evening events per year would
occur.
25
Taxpayers contends that description was misleading because it did not place a limit on
the number of evening events that would be held each year. Under CEQA, a public
agency must determine what, if any, effect on the environment a proposed project may
have. To do so, a public agency must first make a fair assessment of existing physical
conditions (i.e., baseline physical conditions) and then compare it to the anticipated or
expected physical conditions were the project to be completed, thereby allowing the
agency to focus on the nature and degree of changes expected in those physical
conditions after the project and whether those changes result in any significant effect on
the existing environment. (Guidelines, § 15125, subd. (a); Communities for a Better
Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319-
321, 328 (Communities); County of Amador v. El Dorado County Water Agency (1999)
76 Cal.App.4th 931, 955 ["An EIR [or initial study] must focus on impacts to the existing
environment, not hypothetical situations."].) "[T]he comparison must be between
existing physical conditions without the [project] and the conditions expected to be
produced by the project. Without such a comparison, the EIR [or initial study] will not
inform decision makers and the public of the project's significant environmental impacts,
as CEQA mandates." (Communities, at p. 328.)
In this case District was required to make a fair assessment or estimate of the
number of evening events to be held at Hoover's football stadium were the Project to be
completed. In the Initial Study, District stated it anticipated "approximately 15 evening
events" per year would be held were the Project to be completed. However, it added the
26
caveat that due to routine practices and unforeseen events (e.g., possible playoff games),
"a few more events may occur." A reasonable interpretation of that language is that
District anticipates 15 evening events per year will be held at Hoover's stadium, but a few
more events could be held. It is common knowledge that a "few" consists of a small
number (i.e., more than one and typically about three or four). Therefore, the Initial
Study in effect stated District expected between 15 and 18 or 19 evening events per year.
We do not conclude District's description of the Project in that regard was inaccurate or
misleading to the Board or the general public.
Furthermore, Taxpayers does not cite any case, statute, regulation, or other
authority persuading us that District was required to place a finite limit on the number of
evening events to be held each year were the Project to be completed.10 Nevertheless, if
the Project is completed and District thereafter proposes to increase the actual number of
evening events held to a number substantially greater than the 15-to-19 range, District
may be required to conduct an additional CEQA review to determine whether the
increased number of events may result in a significant effect on the environment.
C
Field lighting. Taxpayers asserts a fair argument exists whether the installation of
field lighting for Hoover's football stadium may have a significant effect on the aesthetics
of the neighborhood. Taxpayers argues the installation of two 100-foot standards and
10 Taxpayers likewise does not cite any case, statute, regulation, or other authority
persuading us that District was required to identify each type of use expected to be made
of Hoover's football stadium were the Project to be completed.
27
two 90-foot standards with a total of 60 luminaires (i.e., light fixtures) would result in
light trespassing onto neighboring residences, causing a significant increase in the
amount of light in the environment during evening events at Hoover's stadium. It also
argues the stadium lighting would degrade the existing visual character of the
neighborhood.
The Initial Study described the new field lighting that would be installed at
Hoover's football stadium, stating: "[T]wo 100 foot light standards on south side of
football field and two 90 foot light standards on north side of football field [would be
installed]. The field lighting would be focused and directed at the field area during
school events, including sporting events (i.e., football, soccer, track) that occur after
dusk. It is anticipated that field lighting will be dimmed at the conclusion of the event
and after all patrons have safely exited the facility (estimated at 9:00 p.m.).
Subsequently, the facility would be cleaned and the field lights will be extinguished
(estimated at 10:00 p.m.)." Appendix A to the Initial Study is a copy of the lighting
impact study conducted for District by T&B Planning Consultants (T&B) regarding the
potential impact of the Project's stadium lighting on the environment. T&B described the
proposed stadium lighting system, stating:
"Proposed artificial lighting improvements include installation of the
Musco Light-Structure Green™ sports lighting system at the football
field. . . . Two light standards would be constructed at the home side
of the field (southern portion of the site) and two light standards
would be constructed at the visitors' side of the field (northern edge
of the site), as depicted on Figure 3-3, Lighting Plan. The light
elements proposed for the home side of the field would consist of
two (2) 100-foot tall galvanized steel poles with each featuring 15
luminaires. The light elements proposed for the visitors' side of the
28
field would consist of two (2) 90-foot tall galvanized steel poles with
each featuring 15 luminaires. Combined, a total of 60 luminaires
would be provided on-site. Each luminaire would feature a 1500-
watt metal halide fixture (producing an average of 134,000 lumens),
a 14-inch external visor to reduce glare, and a reflective insert to
focus light onto the playing field and reduce spill light.
"According to manufacturer's specifications, the Musco Light-
Structure Green™ includes a light spill and glare control system that
is designed to minimize off-site impacts from the sports lighting
system. The reflector and external visor are designed so the majority
of the light is in the lower portion of the beam, and direct line of
[sight] to the lamp (source of glare) is minimized when viewed from
surrounding areas. Each fixture housing has reflective inserts which
direct, shift, and focus light onto the field and reduce spill and
glare."
T&B stated the Project would have an adverse lighting impact (i.e., significant effect on
the environment) if it would produce a substantial amount of light pollution, including
sky glow, light trespass or glare. It concluded the Project's sky glow and glare would
have a less than significant impact. Regarding light trespass, T&B reviewed the
standards adopted by three professional and/or industry organizations for limiting light
trespass onto adjacent residential properties in areas of medium ambient brightness that
include urban residential areas like those in which the Project is located.11 Based on its
review, T&B established a threshold of CEQA significance for light trespass for the
Project if illuminance exceeded 0.8 foot-candles during precurfew hours and 0.2 foot-
candles during postcurfew hours, as measured on horizontal and vertical planes at the
property line of any adjacent residence. T&B stated: "The potential for sleep disruption
11 Those organizations were the Institution of Lighting Engineers, Illuminating
Engineering Society of North America, and the Electric Power Research Institute.
29
is the critical component in determining the level of impact for light trespass." T&B's
analysis of the Project's light impact was based on a photometric analysis conducted by
Musco Lighting, the Project's lighting system designer.
Most importantly for purposes of this appeal, T&B concluded the vertical
illuminance caused by the Project would not significantly impact the residences located
west of Highland Avenue. It stated:
"[I]mplementation of the Project would result in the contribution of
approximately 0.26-1.46 vertical foot-candles at various off-site
locations, as calculated from adjacent residential property lines [west
of Highland Avenue]. [¶] However, it is important to note that the
calculations depicted on Figure 5-1 do not account for the
landscaping proposed as part of the Project, which would include
approximately 13 trees along the boundary with Highland
Avenue. . . . With maturity of landscaping, these trees would
therefore obstruct most line-of-[sight] views to the site, with
exception of several gaps measuring between 0 to 10 feet where tree
canopies would not overlap.
T&B noted that an area along Highland Avenue would be subjected to precurfew
illuminance ranging from 0.89 to 1.46 vertical foot-candles, but that on maturity of the
Project's proposed trees illuminance would not exceed 0.8 vertical foot-candles and
therefore would be less than significant. Furthermore, before maturity of the Project's
proposed trees, T&B stated:
"[I]t is unlikely that operation of the proposed lighting system would
result in significant adverse impacts related to light trespass. In
urbanized locations, like the Project site and surrounding areas, the
most common adverse effect of light trespass is disruption of sleep.
Although the [Project] would create spill light that would result in
light trespass on adjacent residential properties during pre-curfew
hours, lighting would be dimmed by 9:00 [p.m.] daily and
extinguished by 10:00 [p.m.] daily, and the nearby residential areas
are located in an area of medium ambient brightness and the small
30
increase in light trespass is considered a less than significant
impact."
Likewise, as to postcurfew impacts, T&B concluded the restriction on hours of operation
of the stadium lighting (i.e., dimming by 9:00 p.m. and extinguishing by 10:00 p.m.)
would avoid light trespass during sleeping hours and the "infrequent use" of the stadium
lighting (i.e., approximately 15 evening events per year) "would help minimize the
incidence of potential adverse light trespass impacts to nearby residences until the
proposed landscaping has reached maturity." T&B concluded the potential for light
trespass impacts would be less than significant both in the near-term before maturity of
the Project's landscaping and in the long-term after maturity of that landscaping.
Based on our independent review of the administrative record, we conclude there
is no substantial evidence in the record showing the Project's lighting elements may have
a significant effect on the environment. (Pub. Resources Code, § 21100; No Oil, Inc. v.
City of Los Angeles, supra, 13 Cal.3d at p. 75; Laurel Heights Improvement Assn. v.
Regents of University of California, supra, 6 Cal.4th at p. 1123.) Taxpayers implicitly
relies on two factors set forth in Appendix G to the Guidelines as showing the Project
may have a significant effect on aesthetics: (1) the Project would substantially degrade
the existing visual character or quality of the site and its surroundings; and/or (2) the
Project would create a new source of substantial light or glare that would adversely affect
day or nighttime views in the area. (Guidelines, append. G, § I, subds. (c) & (d).)
However, Taxpayers has not persuaded us there is substantial evidence to support a
31
finding that either or both of those factors shows the Project may have a significant effect
on the environment.
First, the lighting impact study concluded, as discussed above, the Project's
lighting elements would not have a significant impact on the environment, citing the
stadium lighting's limited hours of operation, limited number of evening events,
landscaping features, and limited number of residences affected by light trespass. Figure
5-1 of the study showed the level of vertical foot-candles caused by the Project's stadium
lighting at various points near residences along Highland Avenue and other neighborhood
streets. Only a small number of residences in the neighborhood would be impacted by
vertical foot-candle levels in excess of the established significance threshold of 0.8 foot-
candles. Our review of Figure 5-1 shows that, at most, seven residences on Highland
Avenue would be so impacted.12 The light trespass on those residences would range
from 0.89 vertical foot-candles to 1.46 vertical foot-candles. Although based solely on
the threshold of significance adopted by T&B (i.e., 0.8 foot candles) it could be argued
the stadium lighting may therefore have a significant impact on the neighborhood, we
conclude that, considering all the circumstances in this case, there is no substantial
evidence the lighting may have a significant impact on the neighborhood. The limited
12 Also, one residence on Monroe Avenue would be impacted by 0.82 vertical foot-
candles and possibly one residence beyond the northeast corner of the stadium would be
impacted by 0.89 vertical foot-candles. However, the de minimis nature and extent of
that light trespass, combined with the limited operating hours and limited number of
evening events, shows light trespass could not, as a matter of law, reach the level of
significance for purposes of CEQA in the circumstances of this case.
32
operating hours of the stadium lighting (i.e., lighting dimmed at 9:00 p.m. and
extinguished at 10:00 p.m.) and limited number of evening events (approximately 15 per
year), when considered with the small number of residences affected (about seven
residences), do not support a fair argument that the Project's stadium lighting may have a
significant effect on the environment.13 Considering the most common adverse effect of
light trespass apparently is disruption of sleep, there is no substantial evidence in the
record to support a finding that it is reasonably possible a substantial number of persons
living in the neighborhood around Hoover may be significantly deprived of sleep and
thereby significantly impacted by the stadium lighting. We conclude there is no
substantial evidence that the Project's stadium lighting may have a significant effect on
the environment by means of significant light trespass (or glare or sky glow).14
Second, Taxpayers asserts the Project's stadium lighting may have a significant
effect on the environment because the lighting will have an "impact on the feel and
quality of the neighborhood." It notes Talmadge is a neighborhood of potentially historic
13 Furthermore, in the long-term any light trespass apparently will be further reduced
when the Project's landscaping (e.g., trees) matures. To the extent Taxpayers argues the
stadium lighting may have a significant effect on the environment because District has
not committed to limiting the number of evening events to 15 per year, we addressed that
issue above and concluded District's description of the Project in effect stated the stadium
lighting would be used from 15 to about 19 evening events per year. Any substantial
increase beyond that range may require future review under CEQA.
14 To the extent Taxpayers asserts there may be a significant effect on the
environment if the lights can merely be seen from the neighborhood, it does not cite any
authority supporting that assertion, and we are not persuaded the threshold for
significance is or should be set so low.
33
significance, with unique homes, narrow streets, and historic lamp posts. It asserts "[t]he
direct visual impact of very tall modern stadium lights is completely out of character with
[the] historic nature of Talmadge." However, based on our review of the whole record,
we conclude the addition of four tall lighting standards to an existing, albeit renovated,
stadium cannot reasonably be considered to have a substantial direct visual impact on the
surrounding neighborhood that would constitute a significant effect on the environment.
Contrary to Taxpayers's assertion, the testimony of a community member that "we
want to come home to peace and calm, not bright lights and noise" does not constitute
substantial evidence showing the lighting may have a significant effect on the
environment. "Under CEQA, the question is whether a project will affect the
environment of persons in general, not whether a project will affect particular persons."
(Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492.)
Furthermore, "[t]he possibility of significant adverse environmental impact is not raised
simply because of individualized complaints regarding the aesthetic merit of a project."
(Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th
357, 376.)
D
Historical resources. Taxpayers also asserts a fair argument exists whether the
Project would have a significant effect on historical resources in Hoover's neighborhood.
It argues the MND and Initial Study did not adequately describe the historical nature of
the neighborhood surrounding Hoover. It further argues District did not analyze whether
the Project would potentially impact the neighborhood's historical resources.
34
The Initial Study described the area surrounding the Project, stating in part: "The
[P]roject site is located in a built-out urban area and is surrounded by residential and
commercial uses." On the question whether the Project would cause a substantial adverse
change in the significance of a historical resource, the Initial Study stated:
"The [P]roject site is currently developed within an existing high
school campus in an urbanized area. The site is not listed on the
State of California's Office of Historic Preservation (SHPO) list for
San Diego County as required by [Guidelines] Section 15064.5
(SHPO, 2009). There are no historic structures occurring on-site.
Furthermore, no buildings associated with the school campus would
be demolished or altered as part of the [Project]. As the [P]roject
would replace or upgrade existing facilities on-site, it is not
anticipated to alter the historic context of the area. Therefore, no
impact is identified for this issue area."
District concluded the Project would have no impact on a historical resource.
Public Resources Code section 21084.1 provides:
"A project that may cause a substantial adverse change in the
significance of an historical resource is a project that may have a
significant effect on the environment. For purposes of this section,
an historical resource is a resource listed in, or determined to be
eligible for listing in, the California Register of Historical Resources.
Historical resources included in a local register of historical
resources . . . are presumed to be historically or culturally significant
for purposes of this section . . . . The fact that a resource is not listed
in, or determined to be eligible for listing in, the California Register
of Historical Resources [or] not included in a local register of
historical resources . . . shall not preclude a lead agency from
determining whether the resource may be an historical resource for
purposes of this section."
CEQA does not require formal listing of a resource in a national, state, or local register as
a prerequisite to "historical" status. (Architectural Heritage, supra, 122 Cal.App.4th at
p. 1114.) The Guidelines provide: "A project with an effect that may cause a substantial
35
adverse change in the significance of an historical resource is a project that may have a
significant effect on the environment. [¶] (1) Substantial adverse change in the
significance of an historical resource means physical demolition, destruction, relocation,
or alteration of the resource or its immediate surroundings such that the significance of an
historical resource would be materially impaired."15 (Guidelines, § 15064.5, subd. (b).)
District correctly determined, and Taxpayers apparently does not dispute, that
Hoover is not a historical resource itself. Rather, Taxpayers apparently argues there are
historical resources near Hoover that District failed to describe and analyze, and the
Project would substantially and adversely change the significance of those historical
resources. The Initial Study, as quoted above, described the area surrounding the Project
as "located in a built-out urban area and is surrounded by residential and commercial
uses." Taxpayers apparently does not dispute the truth of that description, but rather
argues District should have expanded that description to include a discussion of the
neighborhood's historic characteristics. Assuming arguendo District should have
included in the Initial Study a more complete description of the neighborhood
surrounding Hoover, we nevertheless are unpersuaded there is substantial evidence in the
record showing that neighborhood, or any element in it, is a historic resource within the
15 The Guidelines further provide: "The significance of an historical resource is
materially impaired when a project: [¶] . . . [d]emolishes or materially alters in an adverse
manner those physical characteristics of an historical resource" that convey its historical
significance and justify or account for its inclusion in, or eligibility for, the California
Register of Historical Resources, a local register of historical resources, or the California
Register of Historical Resources as determined by a lead agency for purposes of CEQA."
(Guidelines, § 15064.5, subd. (b)(2).)
36
meaning of CEQA. Although the administrative record is voluminous, Taxpayers cites
only a few pages that purportedly show there are historical resources in the neighborhood
surrounding Hoover.
First, Taxpayers cites a map that apparently is an excerpt from a 1996 report of the
Greater Mid-City Historic Survey Oversight Committee. That map contains the
description "Boundaries of the potential Talmadge Historic District," depicts an area
adjacent to Hoover, and shows numerous lots marked with dots. However, we do not
conclude from that excerpt that the potential historic district was ever, in fact, listed by
City, or determined by City to be eligible for listing in, its registry of historic districts.
The fact that an oversight committee apparently was proposing such a district does not
provide substantial evidence to support a conclusion that City actually made that
determination.
Second, Taxpayers cites a page in the record apparently consisting of a 2003
"draft" map created by City's planning department showing existing conditions in the
Kensington-Talmadge area. The draft map's legend and color-coding appear to show a
street immediately north of Hoover (presumably Monroe Avenue) that is designated as an
existing historic district.16 However, we are unable to conclude from that draft map that
the historic district reflected on it was ever, in fact, listed by City, or determined by City
to be eligible for listing, in its registry of historic districts. The fact City's planning
department created a "draft" map apparently reflecting an "existing" historic district does
16 Portions of that street are designated "Talmadge Lots" and "Talmadge Gates."
37
not provide substantial evidence to support a conclusion that City actually had made that
determination.
Finally, Taxpayers cites an excerpt from a "final" Mid-City Communities Plan
prepared by City's planning department. That excerpt makes a general reference to "the
Kensington & Talmadge Historic District." However, it does not show the location of
that district or otherwise provide any substantial evidence to show the area surrounding
Hoover was listed by City, or determined by City to be eligible for listing, in its registry
of historic districts. Taxpayers has not carried its burden on appeal to show there is
substantial evidence that the area surrounding Hoover is an historical resource within the
meaning of CEQA. (Pub. Resources Code, § 21084.1; Guidelines, § 15064.5, subd. (b).)
Nevertheless, assuming arguendo there is an historical resource near Hoover,
Taxpayers does not cite any substantial evidence showing that historical resource's
significance may be materially impaired, and thereby substantially and adversely
affected, by the Project. (Guidelines, § 15064.5, subd. (b).) Assuming Monroe Avenue
adjacent to the stadium is an historical district, there is no substantial evidence showing
its historical significance may be materially impaired by the addition of stadium field
lighting. Although Taxpayers asserts the Project's lighting structures will be seen from
the neighborhood during evening events and during daylight, it cannot be reasonably
inferred, based on the record in this case, that the lighting may materially impair
whatever historical significance Monroe Avenue or any other nearby historical resource
may have. Hoover's stadium (i.e., football field, track, and bleachers) apparently has
been in its current location for more than 30 years. If the Project were completed, the
38
stadium would remain, albeit renovated and with the addition of field lighting.
Taxpayers does not cite any evidence showing any special historical significance of the
adjacent Monroe Avenue or other neighborhood would be materially impaired by the
addition of field lighting. We cannot conclude the Project may materially impair the
historical significance of ornamental lampposts and gates in the neighborhood.17 Based
on our review of the record, there is no evidence that the Project, if completed, would
"[d]emolish[] or materially alter[] in an adverse manner those physical characteristics of
an historical resource" that convey its historical significance and justify or account for its
inclusion in, or eligibility for, the California Register of Historical Resources, a local
register of historical resources, or the California Register of Historical Resources as
determined by a lead agency for purposes of CEQA. (Guidelines, § 15064.5, subd.
(b)(2).) We conclude there is no substantial evidence showing the Project may materially
impair, or substantially and adversely affect, any historical resource. (Guidelines,
§ 15064.5, subd. (b).)
E
Traffic and parking. Taxpayers asserts a fair argument exists whether the
installation of the Project's proposed field lighting for Hoover's football stadium may
17 The evidence showing persons may have climbed onto gates during prior stadium
events does not show the addition of field lighting may substantially impair any historical
significance of those gates. Similarly, evidence showing school contractors may have
damaged those gates during prior projects does not show the Project, including the
addition of field lighting, may substantially impair any historical significance of those
gates.
39
have a significant effect on the area's traffic and parking. Taxpayers also asserts District
abused its discretion in adopting the MND because it did not adequately consider event
attendance, traffic and parking issues.
Initial Study. A traffic impact study conducted by LOS Engineering, Inc. (LOS)
regarding the Project's potential impact on traffic and parking is set forth in Appendix C
to the Initial Study. LOS based its traffic and parking analysis on a calculation of the
average attendance at evening football games, which would begin at about 6:30 p.m.
Based on attendance data from five District high schools other than Hoover, LOS
concluded attendance at Hoover evening football games would equal 68 percent of its
student population (2,123), or 1,444. It assumed 82.5 percent of attendees (1,191) would
arrive by car and each car would carry three attendees. Therefore, an average of 397 cars
would travel to and from Hoover for football games. Under the Project, the number of
on-site parking spaces would increase from 167 spaces to 223 spaces, an increase of 56
spaces. Because there will be only 223 on-site parking spaces for those 397 cars, the
Project will create a parking shortage of 174 spaces. However, LOS concluded the
Project would not have a significant impact on parking because: (1) the number of on-site
parking spaces would increase by 56 spaces; (2) only 15 evening events per year would
be held; and (3) noncompliance with City's parking ordinance (apparently because of a
parking deficit exceeding 10 percent of the stadium's capacity) did not necessarily
constitute a significant effect on the environment. Regarding the Project's impact on
traffic, LOS examined existing vehicle traffic on Friday, April 24, 2009, at six
intersections along El Cajon Boulevard (only two of which were adjacent to Hoover)
40
between the hours of 5:30 p.m. and 6:30 p.m. The intersection with Highland Avenue
leading to Hoover's stadium operated at a level of service of "C" based on City's criteria
regarding the average number of seconds of delay. On completion of the Project, LOS
calculated that an additional 286 inbound vehicles would pass through that intersection
before Hoover football games, resulting in a degradation of the level of service from "C"
to "D" based on an increase in the average delay from 20.5 seconds to 33.9 seconds.
Because the level of service did not degrade below level "D" at that intersection (and the
five other intersections), LOS concluded the Project did not significantly impact traffic
per City's established thresholds for significance.
Public comments. Following District's notice of intent to adopt the MND, it
received extensive oral, written and physical evidence (e.g., photographs) from residents
of Hoover's neighborhood and others regarding the environmental effects of the Project,
including its anticipated impact on traffic and parking in the area. District received
comments asserting the Project would cause substantial parking and traffic problems in
the neighborhood. For example, a letter from two residents stated in part:
"A baseline of parking has not been established at 7:00 p.m. on a
Friday night (the start time for a typical evening football game) to
determine how many vehicles already occupy the street parking
available in the surrounding streets; thereby calculating how the
overage from a night event will significantly impact the area.
"There is no reference to the available off-site (street) parking in the
[traffic impact study]. It only references the parking that is deficient
onsite.
"The area is landlocked by canyons. This leaves no other option for
residents and event attendees alike, when parking is not available, to
41
park completely out of the area and/or illegally parking their
vehicle[s] (which is usually a common choice). [¶] . . . [¶]
"Due to the number and size of event attendee vehicles parked along
our narrow streets (streets which are less than 30 feet across)[,]
visibility from cross streets is significantly impacted which promotes
an unsafe driving situation. Many of these parked cars are illegally
blocking driveways, crosswalks, and access to fire hydrants. Due to
the illegal parking on the narrow streets, residents do not have the
space required to maneuver their vehicles from the street to their
driveways/garages."
District's response. In response to the public comments it received, District stated
the Guidelines did not require it to perform a CEQA analysis of the Project's impact on
parking. Furthermore, District stated that because the capacity of the stadium's bleachers
would be reduced by 1,665 seats, it did not expect the Project to cause any expansion of
event attendance. Regarding traffic, District stated it would implement traffic control and
crowd control measures during evening events to direct traffic, prevent loitering in the
neighborhood, and encourage parking on the Hoover campus.
Attendance. Taxpayers argues District abused its discretion by not establishing a
baseline attendance number for Hoover football games and by assuming 1,444 persons
would attend football games on completion of the Project. An initial study under CEQA
must describe the physical environmental conditions in the vicinity of a proposed project
as they exist at that time, which environmental setting will normally constitute the
baseline physical conditions by which a lead agency will determine whether a project
may have a significant impact on the environment. (Guidelines, §§ 15125, subd. (a),
15126.2, subd. (a); Communities, supra, 48 Cal.4th at p. 320 & fn. 5.) Without a
comparison of existing, baseline physical conditions to the conditions expected to be
42
produced by a project, an initial study or EIR "will not inform decision makers and the
public of the project's significant environmental impacts, as CEQA mandates."
(Communities, at p. 328.) Nevertheless, neither CEQA nor the Guidelines "mandates a
uniform, inflexible rule for determination of the existing conditions baseline. Rather, an
agency enjoys the discretion to decide, in the first instance, exactly how the existing
physical conditions without the project can most realistically be measured, subject to
review . . . for support by substantial evidence." (Ibid.)
The Initial Study, including the traffic impact study, did not include any
calculation or other description of existing attendance at Hoover football games. To the
extent District asserts that calculation was not required by CEQA because Hoover's
football games currently are held in the afternoon, the record appears to reflect a virtual
consensus among Hoover staff, parents, and alumni, neighborhood residents, and others
that the addition of stadium lighting would allow more persons (e.g., parents) to attend
football games during evening hours when most persons are not working and thus
increase attendance at Hoover football games.18 Accordingly, District should have
considered such afternoon game attendance in calculating a baseline attendance figure so
18 Ron Lardizabal, Hoover's athletic director, described at the January 11, 2011,
Board meeting how adult attendance at Hoover football games was greater at three
evening football games held in 2006, 2008, and 2010 (apparently using temporary field
lighting) than at games held in the afternoon.
43
it could compare that baseline to expected attendance at evening football games on
completion of the Project.19
In any event, District's calculation of the expected attendance at Hoover's evening
football games on completion of the Project was questionable. Rather than using actual
attendance data for Hoover's afternoon football games and increasing that number to
account for additional persons who would attend evening games, LOS, on District's
behalf, based its calculation on the average attendance at football games at five of
District's 16 high schools (excluding Hoover) without providing any explanation
regarding why those schools were selected and/or were comparable to Hoover. Those
five high schools were La Jolla, Lincoln, Madison, Mira Mesa, and San Diego high
schools. Even were we to assume those high schools were selected because they have
stadium lighting and hold evening football games, LOS did not explain why attendance
data from the three other District high schools that also have stadium lighting (i.e.,
Patrick Henry, Scripps Ranch, and Serra high schools) were excluded from its study.20
In the circumstances of this case, absent a reasonable explanation for exclusion, it would
appear to be a better practice to consider attendance data from all eight District schools
19 To the extent LOS implicitly applied a baseline attendance number of zero
because Hoover does not currently hold evening football games, we nevertheless believe
Hoover's afternoon game attendance data has an important role in calculating its expected
evening game attendance on completion of the Project.
20 A June 17, 2009, memorandum from Dave Davis, District's CEQA coordinator,
set forth an informational matrix listing those District high schools that have football
field lighting and those that do not.
44
that hold evening football games in calculating the expected attendance at Hoover
evening football games were the Project completed.
For each of the five high schools, LOS calculated a ratio of its average attendance
at evening football games to its number of enrolled students. However, LOS does not
explain how that ratio is helpful in calculating the expected attendance at Hoover's
evening football games. Nevertheless, assuming there is some general correlation
between enrollment at high schools and average attendance at football games, we likely
would defer to District in its selection of a methodology for calculating the expected
attendance at Hoover evening football games. (Cf. Communities, supra, 48 Cal.4th at p.
328 [lead agencies have discretion to choose methodology for determining existing
conditions baseline if supported by substantial evidence].) Based on its data, LOS found
there was a range of 125 percent (at Lincoln High School) to 13 percent (at San Diego
High School) at those five high schools. For those five high schools, the average
percentage of attendance at football games to student enrollment was 68 percent.21
Applying that percentage to Hoover's student enrollment of 2,123, LOS calculated the
attendance at Hoover's evening football games on completion of the Project would be
1,444. However, LOS did not compare that number to actual attendance data from
21 As Taxpayers argues, absent a reasonable explanation showing Hoover's football
game circumstances are similar to San Diego High School's, a statistician might exclude
that school's low 13 percent attendance rate as aberrational, thereby increasing the
average percentage for the other four high schools (or seven if the three excluded high
schools were included) above 68 percent (e.g., to 82 percent). In that event, LOS's
methodology would result in a greater expected attendance at Hoover evening football
games (e.g., 82 percent of 2,123 enrolled students, or 1,740).
45
Hoover's past afternoon football games to verify whether that number of attendees (i.e.,
1,444) appeared realistic considering the general consensus that attendance would
increase at Hoover football games were they held in the evening with field lighting.
Absent that check based on actual Hoover attendance data, it may be questioned whether
LOS's methodology, as applied, resulted in an abuse of discretion and/or was not
supported by substantial evidence. Without a reasonable determination of the expected
attendance at Hoover evening football games on completion of the Project, District may
be unable to adequately compare the baseline attendance to expected attendance in
determining whether there is a fair argument the Project may have a significant impact on
traffic and/or parking.22 (Guidelines, §§ 15125, subd. (a), 15126.2, subd. (a);
Communities, at p. 320 & fn. 5.)
Parking. Taxpayers asserts that District did not conduct an adequate study of the
Project's impact on parking. The Initial Study stated the Project will create a parking
shortage of 174 spaces. However, based on our review of LOS's study, it appears LOS
did not make any attempt to ascertain the total number of off-site, street parking spaces in
the immediate area, nor did LOS make any attempt to ascertain the number of available
off-site, street parking spaces during the Friday evening time period of 5:30 p.m. to 6:30
22 We further believe District's study of the Project's impact on traffic and parking
should consider both the average expected attendance at Hoover evening football games
and the expected peak attendance at evening football games (e.g., homecoming games).
However, contrary to Taxpayers's assertion, District's attendance calculation was not
required to be equal to the stadium's full capacity on completion of the Project (i.e.,
2,796), but rather should be based on the expected attendance at football games on
completion of the Project.
46
p.m. that it selected for determining traffic levels. Therefore, LOS had no basis on which
to conclude the parking shortage of 174 spaces would be filled by available off-site, street
parking spaces in the immediate area. Contrary to LOS's conclusion, the fact the Project
would add 56 on-site spaces did not show the Project could not have a significant impact
on parking in the neighborhood based on the apparent need of 174 off-site, street parking
spaces.23
Contrary to District's assertion, CEQA does not provide that a project's direct
impact on parking cannot constitute a significant impact on the physical environment. In
support of its assertion, District cites language from San Franciscans Upholding the
Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656(SFUDP), which states:
"[T]here is no statutory or case authority requiring an EIR to identify
specific measures to provide additional parking spaces in order to
meet an anticipated shortfall in parking availability. The social
inconvenience of having to hunt for scarce parking spaces is not an
environmental impact; the secondary effect of scarce parking on
traffic and air quality is. Under CEQA, a project's social impacts
need not be treated as significant impacts on the environment. An
EIR need only address the secondary physical impacts that could be
triggered by a social impact. (Guidelines, § 15131, subd. (a).)
23 Furthermore, had an adequate expected attendance determination been made, it is
likely a much greater number of off-site, street parking spaces would be required for
Hoover evening football games. For example, if expected attendance were 1,740, using
LOS's methodology about 478 vehicle trips would be made in and out of the area for
Hoover football games and, after subtracting the number of on-site spaces (223), there
would be a parking shortage of 255 spaces instead of the 174 spaces calculated by LOS in
its traffic and parking study, resulting in a much greater impact on parking in the area.
47
"Thus, the EIR correctly concluded that '[p]arking shortfalls relative
to demand are not considered significant environmental impacts in
the urban context of San Francisco. Parking deficits are an
inconvenience to drivers, but not a significant physical impact on the
environment.' (Italics added.) The EIR then fulfilled its CEQA-
mandated purpose by identifying ways in which the secondary
environmental impacts resulting from the projected parking deficits
could be mitigated, in keeping with the specific environmental
strictures imposed by the City's own transit-first policy." (SFUDP,
at p. 697.)
District argues that under SFUDP the parking shortage created by the Project is merely a
"social inconvenience," and cannot constitute a significant physical impact on the
environment. However, as Taxpayers argues, that language from SFUDP is likely dicta
because the court alternatively concluded there was substantial evidence to support the
EIR's conclusion that proposed measures to mitigate the parking shortage were adequate.
(Id. at pp. 696-698 & fn. 24.) Furthermore, SFUDP's language applied only to the
special circumstances in that case in which there was a strong public policy, reflected in a
city ordinance, against providing private off-street parking to encourage the use of public
transit.24 (SFUDP, supra, 102 Cal.App.4th at pp. 696-698 & fn. 24.) In any event, we
24 SFUDP stated: "Significantly, the City Planning Code itself does not require new
commercial projects in the downtown commercial retail district to provide additional off-
street parking. Thus, Planning Code section 161 states in pertinent part as follows: '(c) In
recognition of the compact and congested nature of the downtown area . . . , the
accessibility of this area by public transit, and programs for provision of public parking
facilities on an organized basis at specific locations, no off-street parking shall be
required for any use, other than dwellings where a requirement is specified, in any C-3
. . . Commercial Districts.' " (SFUPD, supra, 102 Cal.App.4th at p. 698, fn. 24.) Unlike
the circumstances in SFUPD, the Project in this case is not located in a downtown area,
and there is no City ordinance absolving a project from providing off-street parking. On
the contrary, City apparently has an ordinance generally requiring projects to provide off-
street parking as LOS noted in its traffic impact study.
48
disagree with the broad statement made in SFUPD that a parking shortage is merely a
social inconvenience and can never constitute a primary physical impact on the
environment. As Taxpayers notes, cars and other vehicles are physical objects that
occupy space when driven and when parked. Therefore, whenever vehicles are driven or
parked, they naturally must have some impact on the physical environment. The fact that
a vehicle's impact may be only temporary (e.g., only so long as the vehicle remains
parked) does not preclude it from having a physical impact on the environment around it.
Therefore, as a general rule, we believe CEQA considers a project's impact on parking of
vehicles to be a physical impact that could constitute a significant effect on the
environment.
Although the Guidelines apparently do not specifically list parking as one of the
potential impacts that must be addressed in an initial study or EIR, the Guidelines do not
set forth an exclusive list of all potential impacts that must be addressed.25 Rather, they
provide a sample list of those impacts of projects that are most common and should be
addressed by lead agencies. (See, e.g., Guidelines, append. G.) The Guidelines expressly
advise: "Substantial evidence of potential impacts that are not listed on this form must
also be considered." (Guidelines, append. G.) Furthermore, the Guidelines include a
25 In fact, a former version of the Guidelines apparently expressly listed parking as a
potential significant environmental impact. (Santa Monica Chamber of Commerce v.
City of Santa Monica (2002) 101 Cal.App.4th 786, 798 ["Chamber of Commerce urges
that an 'adverse parking effect' is itself an environmental impact, citing Guidelines,
appendix G, [former section XVI, subdivision (f)] (which is simply a sample question
that asks: 'Would the project result in inadequate parking capacity?')"].)
49
section on transportation and traffic, which issues presumably include parking issues
even though parking is not expressly listed. (Guidelines, append. G, § XVI.) We reject
SFUDP's language, quoted above, and are unpersuaded by its reasoning. Therefore, we
decline to apply it in the circumstances of this case.26
Furthermore, regardless of whether parking is considered a primary or secondary
impact of a project, a project's impact on parking generally should be studied for any
potential impact on the environment. "CEQA requires a governmental agency [to]
prepare an environmental impact report (EIR) whenever it considers approval of a
proposed project that 'may have a significant effect on the environment.' ([Pub.
Resources Code,] § 21100, italics added.)" (Quail Botanical Gardens Foundation, Inc. v.
City of Encinitas, supra, 29 Cal.App.4th at p. 1601.) CEQA does not limit consideration
of a project's effects on the environment to only those that are "direct" or "primary." The
Guidelines define "[s]ignificant effect on the environment" as "a substantial, or
potentially substantial, adverse change in any of the physical conditions within the area
26 Apparently other courts have not adopted SFUPD's language. Our research has
not found any published California case adopting that language and applying it to exclude
parking as a potential environmental effect under CEQA. We also note that it is not
uncommon for initial studies and EIR's to include sections analyzing the potential
impacts of projects on traffic and parking, reflecting a presumption that the lack of
sufficient parking can constitute a significant impact on the environment. (See, e.g.,
Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47
Cal.3d 376, 418 [EIR's parking mitigation measures were adequate]; City of Long Beach
v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 916-918 [substantial
evidence supported EIR's finding that project would not have a significant impact on
parking]; Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1019-
1022, 1029-1030 [EIR's parking mitigation measures were adequate].)
50
affected by the project including land, air, water, minerals, flora, fauna, ambient noise,
and objects of historic or aesthetic significance. An economic or social change by itself
shall not be considered a significant effect on the environment. A social or economic
change related to a physical change may be considered in determining whether the
physical change is significant." (Guidelines, § 15382, italics added.) If a project causes a
direct or indirect adverse change in a physical condition in an area, any social impact on
humans related to that physical change may be considered by a lead agency in
determining whether the physical change is "significant" under CEQA. (Guidelines,
§§ 15360 [significant effects may be either direct or indirect], 15064, subd. (e) ["If the
physical change causes adverse economic or social effects on people, those adverse
effects may be used as a factor in determining whether the physical change is
significant."]; see also Pub. Resources Code, § 21065 [defining a "project" as an activity
that may cause "either a direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment"].) The Guidelines define the
"environment" as "the physical conditions which exist within the area which will be
affected by a proposed project . . . [and] includes both natural and man-made conditions."
(Guidelines, § 15360; see Pub. Resources Code, § 21060.5.)
Vehicles, whether driven or parked, in effect constitute man-made conditions and
therefore may constitute physical conditions in an area that may be affected by a
proposed project, thereby requiring a lead agency to study whether a project's impact on
parking may cause a significant effect on parking and thus the environment.
Furthermore, to the extent the lack of parking affects humans, that factor may be
51
considered in determining whether the project's effect on parking is significant under
CEQA. (Cf. Guidelines, § 15064, subd. (e) [overcrowding of a public facility that causes
an adverse effect on people may be regarded as a significant effect].)
Based on our review of the record in this case, District did not properly study the
question of whether the Project may have a significant effect on parking in the area.
Initially, it did not properly establish a baseline attendance number to which it could
compare the expected attendance on completion of the Project, which comparison would
ultimately allow it to consider the nature and scope of the Project's adverse change on
parking in the area. The record includes extensive evidence (e.g., letters and
photographs) from residents in the area showing the Project may have an adverse effect
on parking. The personal observations and opinions of local residents on the issue of
parking in the area may constitute substantial evidence that a project may have a
significant impact on parking and thus the environment. (Cf. Mejia, supra, 130
Cal.App.4th at p. 339; Architectural Heritage, supra, 122 Cal.App.4th at pp. 1117-1118;
Arviv Enterprises, Inc. v. South Valley Area Planning Com. (2002) 101 Cal.App.4th
1333, 1347.)
Based on our review of the record, we conclude there is substantial evidence to
support a fair argument that the Project may have a significant impact on parking and
thus the environment. In addition to the comment letter quoted above, a Monroe Avenue
resident wrote a letter expressing his opposition to Hoover's stadium lighting and night
football games because, in part, "[s]chool parking is inadequate and so spill over into the
bedroom community behind the school is planned for the school to have a major influx of
52
cars and people" and "[s]treet parking in all the closed canyon streets as well as Monroe
Ave & Max Drive behind the school is filled during daylight games and will impair the
bedroom community in evening hours in ways of preventing parking for people that live
in the area coming home from work."27 Many other residents wrote letters expressing
their concerns that the Project would adversely affect the availability of street parking in
the area. Contrary to District's assertion, the "limited" number of evening events at
Hoover's stadium on completion of the Project (i.e., 15 to 19 evening events per year)
will not necessarily reduce those parking problems below a level of significance.28
27 To the extent District asserts any parking problems on neighborhood streets (e.g.,
Highland Avenue and Monroe Avenue) will be avoided by restricting access to the
stadium and allowing access only from El Cajon Boulevard, its supporting citation does
not show the Project will so restrict access. Also, although the Initial Study noted
"[a]ccess to the football field would only be available from the internal portion of the
school campus through the eastern portion of the football field at the new athletic services
building," it is unclear whether that statement means that all current gates to and from
Highland Avenue and/or Monroe Avenue would be closed or whether those gates would
remain open but football game attendees would be required to enter the stadium or
football field through one internal gate on the east side of the field. The record contains a
January 2009 document presumably prepared by District staff indicating that Hoover
plans to have separate home and visitor entrance gates for the stadium. That document
tends to refute District's apparent assertion on appeal that there will be only one internal
gate that could be accessed only from El Cajon Boulevard on the south side of the
Hoover campus. Nevertheless, to the extent attendees are required to enter only from El
Cajon Boulevard, the traffic and parking issues should be addressed considering that
restriction.
28 We acknowledge that, on its face, there appears to be an inconsistency between
this statement and our conclusion above that the limited number of events is one factor
showing the Project's lighting impact would not be significant. Because we considered
other factors along with the limited number of evening events in concluding the Project's
lighting would not have a significant effect on the environment, the number of events was
only one factor that weighed in favor of that conclusion. Furthermore, the Project's
impact on parking and lighting appears to be substantially different, both qualitatively
53
Furthermore, because District did not have sufficient information relating to the Project's
impact on parking and therefore could not adequately consider the potential significance
of the Project's impact on parking, District abused its discretion as a decision maker
under CEQA. (Pub. Resources Code, § 21168.5 [agency abuses its discretion under
CEQA if it does not proceed in a manner required by law]; Sunnyvale West
Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351,
1385-1388; Sierra Club, supra, 6 Cal.App.4th at p. 1317.) Because there is substantial
evidence to support a fair argument that the Project may have a significant effect on
parking, an EIR is required for the Project. (Mejia, supra, 130 Cal.App.4th at p. 342.)
The trial court erred by concluding otherwise.
Traffic. We further conclude there is substantial evidence to support a fair
argument that the Project may have a significant effect on traffic in the area. Many of the
residents' comment letters referred to the significant traffic problems they observed
during past events at the stadium and complained their neighborhood's narrow streets
became very congested during stadium events. Residents described vehicles crossing
over the center lines of streets into oncoming traffic, vehicles striking and breaking side
mirrors of parked cars, and dangerously reduced visibility at street intersections because
of parked vehicles. Based on the general consensus that evening football games on
completion of the Project will increase attendance and thus the number of vehicles, any
and quantitatively. The record shows a much greater number of area residents likely will
be adversely affected by the parking shortage caused by the Project than will be adversely
affected by the Project's lighting.
54
traffic problems experienced in the past logically will only be exacerbated if the Project is
completed and evening football games are held. Furthermore, as discussed above,
District's lack of sufficient attendance data precluded it from adequately addressing
traffic problems (as well as parking problems) that may be caused by the Project. Had
District obtained sufficient data on which to make a proper estimate of expected
attendees, it may very well have determined that the number of vehicles expected to
travel in and out of the Hoover neighborhood during evening football games will be
much greater than the 397 vehicles LOS calculated in its traffic impact study. Finally,
because District did not have sufficient information relating to the Project's impact on
traffic and therefore could not adequately consider the potential significance of the
Project's impact on traffic, District abused its discretion as a decision maker under
CEQA.29 (Pub. Resources Code, § 21168.5 [agency abuses its discretion under CEQA if
it does not proceed in a manner required by law]; Sunnyvale West Neighborhood Assn. v.
City of Sunnyvale City Council, supra, 190 Cal.App.4th at pp. 1385-1388.) Because
there is substantial evidence to support a fair argument that the Project may have a
significant effect on traffic (as well as on parking, as discussed above), an EIR is required
29 LOS's traffic impact study did not appear to consider any traffic congestion, and
the resulting dangers, on the neighborhood's narrow streets and intersections, particularly
considering the many parked cars, were the Project completed. Rather, LOS appeared to
consider only the actual number of vehicles at certain intersections along El Cajon
Boulevard (e.g., vehicles turning from El Cajon Boulevard onto Highland Avenue),
which arguably is an inadequate analysis of traffic impacts potentially caused by the
Project.
55
for the Project. (Mejia, supra, 130 Cal.App.4th at p. 342.) The trial court erred by
concluding otherwise.30
F
Zoning. Taxpayers asserts District wrongly claimed in the Initial Study that the
Project was exempt from City's zoning and land use laws and therefore no discussion or
consideration of the Project's inconsistency with those laws was required. As noted
above, the Board did not act to exempt the Project from City's zoning and land use laws
until May 10, 2011. Therefore, the Initial Study's claim on January 11, 2011, that the
Project was exempt from City's zoning and land use laws was not correct. However,
because the Board subsequently acted to exempt the Project and because we reverse and
remand this matter for preparation of an EIR for the Project, this issue is moot and we
need not address it further.
G
Because there is substantial evidence to support a fair argument that the Project
may have a significant effect on traffic and parking, the trial court erred by concluding
District properly adopted the MND and Initial Study and by dismissing Taxpayers's
second cause of action for violation of CEQA.
30 Because we reverse the trial court's dismissal of the second cause of action based
on substantial evidence that the Project may have a significant effect on traffic and
parking, we need not address Taxpayers's additional contention that the Project's
cumulative impacts are significant.
56
III
Government Code Section 53094 Exemption
Taxpayers contends the trial court erred by dismissing its third and fourth causes
of action because District's resolution pursuant to Government Code section 53094
exempting Hoover and other high schools from City's zoning and land use laws is invalid.
It argues inadequate notice of that action was given, the exemption of classroom and
nonclassroom facilities is overbroad, and that exemption action is a project requiring
compliance with CEQA.
A
Taxpayers's first amended complaint alleged causes of action for District's
violation of the City's zoning and land use laws (third cause of action) and for District's
violation of Government Code section 53094 by exempting the Hoover Project and
certain other high school projects from City's zoning and land use laws (fourth cause of
action). Taxpayers argued it should prevail on its third cause of action because the Board
did not adopt a resolution to exempt the challenged high school projects from zoning and
other land use laws until May 10, 2011, after Taxpayers filed the instant action on
February 9, 2011. Taxpayers also argued Hoover's new stadium lighting was part of
nonclassroom facilities that cannot be exempted from zoning and other land use laws
under Government Code section 53094. In its fourth cause of action, Taxpayers argued
reasonable notice was not given to affected property owners of the Board's hearing on the
resolution to exempt District from City's zoning and other land use laws. It also argued
District improperly exempted whole school sites under Government Code section 53094.
57
Finally, it argued District's Government Code section 53094 exemption action was a
project within the meaning of CEQA, thereby triggering District's duty to conduct a
proper CEQA review before taking that action.
District refuted Taxpayers's arguments and argued the third and fourth causes of
action should be dismissed. After reviewing the parties' papers and hearing arguments of
counsel, the trial court rejected Taxpayers's arguments and dismissed the third and fourth
causes of action.
B
In construing statutory language, we attempt to ascertain and effectuate the
Legislature's intent. (People v. Casteneda (2000) 23 Cal.4th 743, 746-747.) "We begin
by examining the words of the [statute]; if the statutory language is not ambiguous, then
we presume the Legislature meant what it said, and the plain meaning of the language
governs. [Citations.] If, however, the statutory language lacks clarity, we may resort to
extrinsic sources, including the ostensible objects to be achieved and the legislative
history. [Citation.] In such situations, we strive to select the construction that comports
most closely with the Legislature's apparent intent, with a view to promoting rather than
defeating the statute['s] general purposes. [Citation.] We will avoid any interpretation
that would lead to absurd consequences." (People v. Walker (2002) 29 Cal.4th 577, 581.)
On appeal, we review de novo, or independently, the question of law regarding the proper
interpretation of a statute. (Lazar v. Hertz Corp., supra, 69 Cal.App.4th at p. 1502.)
C
Government Code section 53094 provides in pertinent part:
58
"(b) [T]he governing board of a school district, that has complied
with [certain statutory prerequisites not relevant in this case], by a
vote of two-thirds of its members, may render a city or county
zoning ordinance inapplicable to a proposed use of a property by
the school district. The governing board of the school district may
not take this action when the proposed use of the property by the
school district is for nonclassroom facilities, including, but not
limited to, warehouses, administrative buildings, and automotive
storage and repair buildings.
"(c) The governing board of the school district shall, within 10 days,
notify the city or county concerned of any action taken pursuant to
subdivision (b). . . ." (Italics added.)
After discussing the legislative history of Government Code section 53094 and its
amendments, one court concluded:
"[T]he amendments to [Government Code] section 53094 do suggest
a legislative conclusion that the relationship between school boards
and their 'nonclassroom facilities' is not significantly different from
the relationship between other state agencies and their property,
which, in fact, could also be characterized as 'nonclassroom
facilities,' and therefore, state educational policy does not reasonably
or logically justify continued permission for school boards to exempt
their 'nonclassroom facilities' from local control. As to what
'nonclassroom facilities' are, the legislative genealogy of
[Government Code] section 53094 further suggests that
'nonclassroom facilities' are those that are not by their nature so
directly or sufficiently related to a school board's unique function as
to distinguish it from any other local agency.
"The statute itself confirms and helps clarify this suggestion by
enumerating instructive examples of 'nonclassroom facilities.' The
statute lists 'warehouses, administrative buildings, [and] automotive
storage and repair buildings[.]' These facilities have nothing directly
to do with classroom activities. Rather, they are devoted completely
to ancillary, noninstructional functions. Thus, we perceive in
[Government Code] section 53094 an intention to distinguish
between instructional and support facilities. Accordingly, we
consider it reasonable and consistent with the legislative history and
purpose of [Government Code] section 53094 to interpret
'nonclassroom facilities' to mean those not directly used for or
59
related to student instruction." (City of Santa Cruz v. Santa Cruz
City School Bd. of Education (1989) 210 Cal.App.3d 1, 7 (Santa
Cruz).)
D
Taxpayers initially asserts the trial court erred by dismissing its third and fourth
causes of action because District did not give adjacent property owners reasonable notice
and an opportunity to be heard on the Board's proposed action to exempt District's 12
high school projects from City's zoning and land use laws. Taxpayers argues the four
days' notice provided by District on May 6, 2011, by posting the Board's agenda on its
website and at District's office was inadequate notice. Taxpayers argues the Board's
action exempting the 12 high school projects from City's zoning and land use laws
constituted a quasi-adjudicative action, triggering greater notice requirements.
However, none of the cases cited by Taxpayers persuade us the Board's exemption
action required any greater notice than required for any general business action. In Horn
v. County of Ventura (1979) 24 Cal.3d 605, cited by Taxpayers, the court stated: "Due
process principles require reasonable notice and opportunity to be heard before
governmental deprivation of a significant property interest. [Citations.] [¶] It is equally
well settled, however, that only those governmental decisions which are adjudicative in
nature are subject to procedural due process principles. Legislative action is not burdened
by such requirements." (Id. at p. 612.) Horn further stated: "Subdivision approvals, like
variances and conditional use permits, involve the application of general standards to
specific parcels of real property. Such governmental conduct, affecting the relatively
few, is 'determined by facts peculiar to the individual case' and is 'adjudicatory' in
60
nature." (Id. at p. 614.) Accordingly, Horn concluded: "[W]henever approval of a
tentative subdivision map will constitute a substantial or significant deprivation of the
property rights of other landowners, the affected persons are entitled to a reasonable
notice and an opportunity to be heard before the approval occurs." (Id. at p. 616.) We
conclude Horn is factually inapposite to this case and does not persuade us Taxpayers or
its members were entitled to reasonable notice and an opportunity to be heard under due
process standards.
Assuming arguendo the Board's proposed action to exempt Hoover and the other
11 high schools from City's zoning and land use laws was, as Taxpayers argues, quasi-
adjudicative in nature, the record in this case does not show, and Taxpayers's first
amended complaint did not allege, the Board's proposed action would deprive Taxpayers
or its members of any "significant" property interest. Taxpayers alleged Hoover's
proposed new stadium lighting would exceed City's 30-foot limit for structures for the
applicable residential zone. However, we cannot conclude Taxpayers or any of its
members residing near Hoover would suffer a significant deprivation of a property
interest were the new stadium lights installed. Taxpayers has not cited any evidence in
the record that would support a reasonable inference the new stadium lighting would so
substantially affect the use of neighboring property that it could constitute a significant
deprivation of a property interest under constitutional due process standards. On the
contrary, the appearance of tall light standards, along with occasional evening events
involving some light trespass and additional traffic, could not, as a matter of law, result in
a significant deprivation of a property interest in the circumstances of this case. Horn
61
does not persuade us District was required to provide neighboring property owners with
reasonable notice and an opportunity to be heard on the Board's proposed exemption
action.
Neither Scott v. City of Indian Wells (1972) 6 Cal.3d 541 nor Topanga Assn. for a
Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, cited by Taxpayers,
are apposite to this case or persuade us to reach a contrary conclusion. In Scott, the court
concluded the City of Indian Wells was required to give notice to any nonresident owners
of property just outside city limits of a proposed grant of a conditional use permit for
construction of an adjacent large planned development within city limits. (Scott, at pp.
544, 548-549.) The court reasoned: "Certainly it is clear that the development of a parcel
on the city's edge will substantially affect the value and usability of an adjacent parcel on
the other side of the municipal line." (Id. at p. 548.) In Topanga, the court reversed a
county's grant of a zoning variance that allowed the development of a mobile home park
on 28 acres, concluding, in part, that the zoning variance was a quasi-judicial,
administrative action that required supporting evidence and findings. (Topanga, at pp.
509-510, 516-517.) None of Taxpayers's cited cases support its argument that "surely an
action to exempt one or more aspects of a school's 'classroom facilities' from zoning
ordinances cannot be so minor as to dispense with notice and due process to adjacent land
owners." We conclude Taxpayers has not carried its burden on appeal to persuade us
District was required to provide it and its members with reasonable notice and an
62
opportunity to be heard before the Board adopted the resolution exempting the projects at
Hoover and 11 other high schools from City's zoning and land use laws.31
E
Taxpayers also asserts the Board's resolution exempting the 12 high schools from
City's zoning and land use laws was overbroad. It argues the resolution did not specify
which facilities at each high school were exempted and from which specific zoning laws
were they exempted.
The Board's resolution. On May 10, 2011, the Board considered a resolution that
included the following prefatory recitals:
"WHEREAS, [District] currently uses the facilities at certain
comprehensive High School Sites ('School Sites') for educational
purposes (the location of the School Sites is attached hereto as
Exhibit 'A');
"WHEREAS, District proposes to modernize and construct new
facilities ('Projects') at their School Sites;
"WHEREAS, the Projects are for educational facilities as required
by Government [Code] Section 53094 and is subject to design
review by the Division of the State Architect ('DSA') under
Education Code section 17280 et seq.;
31 We further note there is no language in Government Code section 53094 or its
related provisions requiring any particular notice and opportunity to be heard be given to
owners of adjacent property before a school district's board adopts a resolution exempting
a proposed use of district property from applicable zoning ordinances. To the extent
Taxpayers believes such notice should be required, it is within the province of the
Legislature, not the courts, to enact legislation requiring notice and an opportunity to be
heard. Absent such legislation, reasonable notice and an opportunity to be heard will be
required only when the proposed action will result in a significant deprivation of a
property interest as discussed above.
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"WHEREAS, Government Code section 53094 authorizes District,
by a vote of two-thirds of its members, to render city zoning
ordinances inapplicable to the Projects and School Sites when the
District's use is for educational facilities;
"WHEREAS, School Sites are located within the boundaries of
[City]; and
"WHEREAS, District has balanced the interests of the public,
including those of District and those of [City] and determined that
the interests of the public are best served by commencing and
completing the Projects upon the School Sites under DSA review."
The Board then unanimously adopted the following resolutions:
"Section 1. That all the above recitals are correct.
"Section 2. That [District] hereby renders inapplicable any zoning
ordinances of [City] including, without limitation, the City's Zoning
Ordinances and General Plans, which would otherwise be applicable
to the Projects or the School Sites.
"Section 3. That the Superintendent of [District], or his designee, is
further directed to give written notice to the City as required by
Government Code Section 53094 within ten (10) days of this
action."
Exhibit A attached to the resolution set forth the names and addresses of Hoover and 11
other District high school projects.32 On May 12, 2011, District gave City written notice
of the Board's exemption action under Government Code section 53094.
32 Hoover's project was described as "Hoover High School Stadium and Sports
Facility Improvements." Nine of the other 11 high school projects contained similar
project descriptions for stadium and/or sports facility improvements. The two remaining
high school projects were described as "Whole Site Modernization" for La Jolla High
School and Serra High School. Given the timing of the Board's resolution and the
context of this case, those projects presumably refer to the projects listed for each high
school site in Proposition S.
64
Taxpayers argues the Board's exemption action was overbroad because it referred
to, and exempted, "educational facilities" rather than "classroom facilities," as used in
Government Code section 53094. That statute authorizes a school district board to
exempt from zoning ordinances a proposed use of district property, except when the
proposed use is for "nonclassroom facilities." (Gov. Code, § 53094, subd. (b).) In Santa
Cruz, the court considered the question of what proposed property uses qualify for zoning
law exemption under Government Code section 53094 and what uses do not. It
interpreted "nonclassroom facilities" under Government Code section 53094 as meaning
"those not directly used for or related to student instruction." (Santa Cruz, supra, 210
Cal.App.3d at p. 7.) Therefore, school district property directly used for or related to
student instruction qualifies for zoning law exemption under that statute. (Id. at pp. 7-8.)
In that case, the school district exempted from city zoning laws the school district's
project to replace a high school stadium's lighting using higher, aluminum poles in place
of shorter, wooden poles. (Id. at pp. 3-4.) Santa Cruz concluded there was sufficient
evidence to support a finding the stadium's field "serves an important educational purpose
at [the high school] and is directly used for student instruction." (Id. at p. 8.)
Furthermore, although evening athletic competitions in a different context may be
considered "extracurricular activities," Santa Cruz noted the California Supreme Court
had concluded they "are an integral and vital part of an educational program and that they
are 'educational' within the free education guaranteed by the California Constitution."
(Id. at pp. 8-9.) Based on that reasoning, we conclude the distinction between classroom
facilities and nonclassroom facilities under Government Code section 53094 turns on
65
whether the proposed use of the facilities is directly for or related to educational purposes
(i.e., the property is "directly used for or related to student instruction"). (Santa Cruz, at
p. 7.)
In this case, the recitations to the Board's exemption resolution expressly stated:
"[T]he Projects are for educational facilities as required by Government [Code] Section
53094." By inclusion of that descriptive language, the Board's resolution, when read as a
whole, exempted only those listed District projects or properties used as educational
facilities and therefore implicitly excluded from exemption those projects or properties
used as noneducational facilities. Because under Santa Cruz educational facilities and
classroom facilities have the same meaning for purposes of Government Code section
53094, we conclude the Board's exemption resolution was not overbroad in exempting
from City's zoning laws those projects at the 12 high schools to the extent they were for
educational (i.e., classroom) purposes. We agree with, and adopt, Santa Cruz's holding
that, absent extraordinary circumstances, high school athletic stadium lighting is directly
used for or related to the educational purposes of the high school and therefore should be
considered part of classroom facilities that may be exempted from zoning laws pursuant
to Government Code section 53094. (Santa Cruz, supra, 210 Cal.App.3d at pp. 7-9.)
The Board's resolution properly exempted Hoover's new stadium lighting from City's
zoning and land use laws.
Furthermore, to the extent certain language in the Board's resolution could be
interpreted as exempting nonclassroom facilities, our interpretation of that language
considering the entire resolution limits the Board's zoning law exemption to only those
66
projects or properties directly used for or related to educational, or classroom, purposes.
The Board's resolution stated it made inapplicable those City's zoning laws and general
plans that "would otherwise be applicable to the Projects or the School Sites." Although
it may be possible to interpret that language, in isolation, as exempting all aspects of the
Proposition S projects at the 12 listed high schools, whether for educational uses or not
(or even as applying to all educational and noneducational facilities at the 12 high
schools), we conclude that when that language is read in the context of the entire
resolution, the Board's resolution exempts from City's zoning laws only those parts of the
projects or properties at the 12 high schools directly used for or related to educational, or
classroom, purposes within the meaning of Government Code section 53094.33 Contrary
to Taxpayers's assertion, the Board was not required to itemize each and every aspect of
the high school projects that will be directly used for or related to educational, or
classroom, purposes. Taxpayers concedes it has not found any case addressing the
sufficiency of the description of the project, classroom facility, and zoning laws for
purposes of an exemption action under Government Code section 53094.34 Because we
construe the Board's resolution as exempting only those projects directly used for or
related to educational, or classroom, purposes, we need not decide what specific
33 Of course, had the Board's resolution been written using more precise language,
any ambiguity could have been avoided and its construction would have been self-
evident.
34 City of Stockton v. Marina Towers, LLC (2009) 171 Cal.App.4th 93, cited by
Taxpayers, is inapposite to this case, does not involve Government Code section 53094,
and therefore does not persuade us to reach a contrary conclusion.
67
descriptions may required for exemption in other cases under Government Code section
53094. The Board did not act arbitrarily or capriciously by adopting the resolution
exempting the 12 high school projects from City's zoning ordinances and general plans.
F
Taxpayers also asserts the Board's zoning exemption action was a "project" within
the meaning of CEQA and therefore required District to comply with CEQA before the
Board took that action.
A government agency does not have a duty to comply with CEQA unless its
actions will constitute "approv[al]" of a "project." (Lexington Hills Assn. v. State of
California (1988) 200 Cal.App.3d 415, 430.) Public Resources Code section 21065
defines a "project" under CEQA as "an activity which may cause either a direct physical
change in the environment, or a reasonably foreseeable indirect physical change in the
environment." The Guidelines define "approval" for public agency projects as "the
decision by a public agency which commits the agency to a definite course of action in
regard to a project intended to be carried out by any person." (Guidelines, § 15352, subd.
(a).) "An activity that is not a 'project' as defined in the Public Resources Code (see [Pub.
Resources Code,] § 21065) and the Guidelines (see [Guidelines] § 15378) is not subject
to CEQA." (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41
Cal.4th 372, 380.) The Guidelines state: "The term 'project' refers to the activity which is
being approved and which may be subject to several discretionary approvals by
governmental agencies. The term 'project' does not mean each separate governmental
approval." (Guidelines, § 15378, subd. (c).) "Whether an activity constitutes a project
68
under CEQA is a question of law that can be decided de novo based on the undisputed
evidence in the record." (Plastic Pipe & Fittings Assn. v. California Building Standards
Com. (2004) 124 Cal.App.4th 1390, 1412-1413.)
The Board's zoning exemption resolution was neither an "approval" nor a "project"
under CEQA. First, it was not an "approval" because the resolution did not commit
District to "a definite course of action in regard to a project." (Guidelines, § 15352, subd.
(a).) Rather, the resolution referred to 12 proposed high school projects and exempted
them from City's zoning and land use laws. By exempting those proposed projects from
City's zoning and land use laws, the Board did not commit District to a definite course of
action regarding any of the those projects. Instead, the exemption resolution was merely
one prerequisite to completion of the proposed projects should District take affirmative
action actually committing itself to a definite course of action regarding any or all of
those projects. By adopting the exemption resolution, the Board did not commit District
to any of the 12 proposed projects or foreclose alternatives to those projects. None of the
cases cited by Taxpayers is factually apposite to this case or persuades us to reach a
contrary conclusion. (See, e.g., City of Carmel-by-the-Sea v. Board of Supervisors
(1986) 183 Cal.App.3d 229.) The Board's zoning exemption resolution did not constitute
an "approval" under CEQA of any of the 12 proposed high school projects.
Second, the Board's zoning exemption resolution was not, in itself, a "project"
under CEQA. The resolution was not itself "an activity which may cause either a direct
physical change in the environment, or a reasonably foreseeable indirect physical change
in the environment" (Pub. Resources Code, § 21065), but rather related to 12 proposed
69
high school projects that, if approved by District, could constitute an activity that may
cause a physical change in the environment. Alternatively stated, the Board's zoning
exemption resolution was not an "activity" in itself that could cause any physical change
in the environment. Each proposed high school project constituted an activity that could
cause a physical change in the environment. The Board's resolution exempting those
projects from City's zoning laws was not a separate activity requiring its own CEQA
review in addition to the CEQA review required for each high school project. (Cf.
Guidelines, § 15378, subd. (c) ["The term 'project' refers to the activity which is being
approved and which may be subject to several discretionary approvals by governmental
agencies. The term 'project' does not mean each separate governmental approval."].)
Because the Board's zoning exemption resolution was neither an "approv[al]" nor
a "project," that action was not subject to CEQA and did not require District to conduct
any CEQA review before the Board adopted that resolution. (Lexington Hills Assn. v.
State of California, supra, 200 Cal.App.3d at p. 430; Muzzy Ranch Co. v. Solano County
Airport Land Use Com., supra, 41 Cal.4th at p. 380.) Rather, before District approves
each of the 12 high school projects, it must comply with CEQA. For example, in
conducting the Initial Study and adopting the MND regarding the Project (i.e., Hoover's
proposed project), District presumably recognized the Project was a "project" under
CEQA that required CEQA compliance before it approved the Project.
70
G
Finally, Taxpayers asserts the trial court erred by dismissing its third cause of
action because it necessarily prevailed on that cause of action when the Board adopted
the zoning exemption resolution after Taxpayers filed the instant action.
In the third cause of action in its original complaint filed on February 9, 2011,
Taxpayers alleged the Project was in violation of local laws and land use and planning
principles. It also alleged the Project was not consistent with the purposes of applicable
zoning and general plan. Taxpayers sought injunctive relief requiring District to
reconsider the Project "consistent with requirements of applicable state and local laws."
On May 10, 2011, the Board adopted the resolution exempting the Project (and 11 other
high school projects) from City's zoning and land use laws. On July 7, 2011, Taxpayers
filed its first amended complaint, which restated its original third cause of action and
incorporated allegations challenging the Board's May 10, 2011, exemption action. That
complaint requested relief setting aside that exemption action.
Based on our independent review of the original complaint, we conclude
Taxpayers did not obtain the primary relief it sought in that complaint's third cause of
action when the Board subsequently adopted the zoning exemption resolution. Taxpayers
sought relief requiring District to reconsider its approval of the Project considering
applicable zoning and land use laws. It did not seek relief exempting the Project from
applicable zoning and land use laws. Therefore, when the Board adopted the zoning
exemption resolution, Taxpayers did not obtain the primary relief it sought in its original
third cause of action. Belth v. Garamendi (1991) 232 Cal.App.3d 896 and Graham v.
71
DaimlerChrysler Corp. (2004) 34 Cal.4th 553, cited by Taxpayers, are factually
inapposite and do not persuade us to reach a contrary conclusion. To the extent
Taxpayers argues the exemption resolution somehow validated District's earlier failure to
consider the Project's inconsistency with City's zoning laws when it adopted the Initial
Study and MND, we conclude the exemption did not absolve District of its CEQA duty to
consider any such inconsistencies before approving the Project. Rather, Board's
resolution simply exempted the Project's classroom facilities from applicable zoning and
land use laws before actual construction of the Project began, thereby avoiding any actual
violation of City's zoning and land use laws. (City of Santa Clara v. Santa Clara Unified
Sch. Dist. (1971) 22 Cal.App.3d 152, 158 [Gov. Code, § 53094 exemption may be made
at any time].) Taxpayers did not prevail on its third cause of action when the Board
adopted the zoning exemption resolution.35
35 District filed a motion to compel correction of Taxpayers's reply brief by striking
those portions referring to a document not contained in the record on appeal (i.e., August
9, 2011, memorandum of City's attorney). We deny the motion to correct, but
nevertheless disregard those portions of Taxpayers's reply brief that refer to or discuss
any documents not contained in the record on appeal, including the memorandum in
question. (Cal. Rules of Court, rule 8.204(a)(2)(C); Pulver v. Avco Financial Services
(1986) 182 Cal.App.3d 622, 632; Doers v. Golden Gate Bridge etc. Dist. (1979) 23
Cal.3d 180, 184, fn. 1; Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6; cf.
C.J.A. Corp. v. Trans-Action Financial Corp. (2001) 86 Cal.App.4th 664, 673 [granting
motion to strike portions of brief referring to evidence not contained in record on
appeal].) Furthermore, because that memorandum is irrelevant to our disposition of this
appeal, we deny Taxpayers's request that we take judicial notice of that document.
72
H
Because we reject all of Taxpayers's assertions challenging and/or relating to the
Board's zoning exemption resolution, we conclude Taxpayers has not carried its burden
on appeal to show the trial court erred by dismissing its third and fourth causes of action.
DISPOSITION
The judgment is reversed to the extent it dismissed the first and second causes of
action; in all other respects, the judgment is affirmed. The matter is remanded with
directions that the superior court grant the petition for writ of mandate and issue the
injunctive and declaratory relief sought in the first and second causes of action of the first
amended complaint and petition, to the extent consistent with this opinion, including, but
not limited to, (1) ordering District to vacate its approval of the Project and the mitigated
negative declaration (MND) and to cause an EIR to be prepared, and (2) enjoining
District from using Proposition S bond proceeds to pay for field lighting at Hoover's
stadium and any other high school stadium for which Proposition S did not specifically
list field lighting as part of their projects. Taxpayers shall recover its costs of appeal.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
73