Taxpayers for Accountable School Bond Spending v. San Diego Unif. School Dist. CA4/1Taxpayers for Accountable School Bond Spending v. San Diego Unif. School Dist. CA4/1
McDONALD, J.—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 Herbert Hoover High School (Hoover). In its operative first amended complaint against District, Taxpayers alleged four causes of action: (1) a
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 (Prop. 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” 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 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.) . . . .”
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
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
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 [44 Cal.Rptr.3d 128] (San Lorenzo).)
“(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
“(A) A requirement that the proceeds from the sale of the bonds be used only for the purposes specified in
“(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.)
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.
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 [102 Cal.Rptr.2d 719, 14 P.3d 930] [independent interpretation of voter initiative as a question of law]; cf. Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1502 [82 Cal.Rptr.2d 368] [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 performance audit to ensure that the bond proceeds have been expended only on the school facilities projects listed in the Bond Project List.”
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
“• 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.)
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 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
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 Americans with Disabilities Act (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 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”
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 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
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
However, Taxpayers‘s first amended complaint did not assert standing under
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 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
“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 [
Because Taxpayers correctly alleged it had standing under
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 [65 Cal.Rptr.2d 580, 939 P.2d 1280].)
“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 [29 Cal.Rptr.3d 788] (Mejia).) In that context, “may” means a reasonable possibility of a significant effect on the environment. (
” ‘A “significant effect on the environment” means a substantial, or potentially substantial, adverse change in the environment.’ ” (
“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.] [¶] 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.” ’ [Citation.] . . . [¶] Relevant personal observations of area residents on nontechnical subjects may qualify
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 [19 Cal.Rptr.3d 469] (Architectural Heritage); see
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
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 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.
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 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
“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 footcandles during precurfew hours and 0.2 footcandles 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 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
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. (
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 [14 Cal.Rptr.3d 308].) 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 [54 Cal.Rptr.3d 485].)
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.
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 an 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
District correctly determined, and Taxpayers apparently does not dispute, that Hoover is not an 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
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 not provide substantial evidence to support a conclusion that City actually had made that determination.
Finally, Taxpayers cites an excerpt from the “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. (
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 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.
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
“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 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. (
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 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, James 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 Junípero 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
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 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 (
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 [125 Cal.Rptr.2d 745] (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. (
“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.)
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, appen. G.) The Guidelines expressly advise: “Substantial evidence of potential impacts that are not listed on this form must also be
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.’ ([
Vehicles, whether driven or parked, in effect constitute manmade 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 considered in determining whether the project‘s effect on parking is significant under CEQA. (Cf.
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 to 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 [125 Cal.Rptr.2d 140].)
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 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
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
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
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.
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
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
B
In construing statutory language, we attempt to ascertain and effectuate the Legislature‘s intent. (People v. Castenada (2000) 23 Cal.4th 743, 746-747 [97 Cal.Rptr.2d 906, 3 P.3d 278].) “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 [128 Cal.Rptr.2d 75, 59 P.3d 150].) 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
“(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
“[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 relationshipbetween 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 related to student instruction.” (City of Santa Cruz v. Santa Cruz City School Bd. of Education (1989) 210 Cal.App.3d 1, 7 [258 Cal.Rptr. 101] (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 Web site 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 [156 Cal.Rptr. 718, 596 P.2d 1134], 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
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 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 [99 Cal.Rptr. 745, 492 P.2d 1137] nor Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506 [113 Cal.Rptr. 836, 522 P.2d 12], cited by Taxpayers, is 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
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 they were 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‘) underEducation Code section 17280 et seq.;“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
Taxpayers argues the Board‘s exemption action was overbroad because it referred to, and exempted, “educational facilities” rather than “classroom facilities,” as used in
In this case, the recitations to the Board‘s exemption resolution expressly stated: “[T]he Projects are for educational facilities as required by
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
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 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
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 [246 Cal.Rptr. 97].)
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.” (
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” (
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
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 the 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 [283 Cal.Rptr. 829] and Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 [21 Cal.Rptr.3d 331, 101 P.3d 140], cited by Taxpayers, are factually inapposite and do not
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
McConnell, P. J., and Haller, J., concurred.
A petition for a rehearing was denied May 25, 2013, and respondent‘s petition for review by the Supreme Court was denied July 31, 2013, S210950. Werdegar, J., did not participate therein.