In a decision that was ordered published on April 25, 2013, Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (March 26, 2013) 2013 Cal.App.LEXIS 324, the Court of Appeal, Fourth Appellate District, held that a high school could not use general obligation bond revenue to pay for new stadium lighting because the bond measure approved by voters did not specifically include new stadium lighting. The court further held that, under the California Environmental Quality Act (CEQA), the School District (District) improperly relied on a Mitigated Negative Declaration (MND) and instead was required to prepare an Environmental Impact Report. The court found evidence in the record sufficient to constitute a fair argument that the project may have significant environmental impacts due to increased traffic and parking demand. In reaching its conclusion regarding parking, the court disagreed with the Second Appellate District’s holding in San Franciscans Upholding the Downtown Plan v. County of San Francisco (2002) 102 Cal.App.4th 656 that parking need only be considered a secondary impact under CEQA. In addition, the court upheld the MND’s project description and its analysis of aesthetics and historic resources. Lastly, the court upheld the District’s action exempting its 12 high schools from local zoning and land use laws, and held that such an action was not a “project” under CEQA.
On July 23, 2008, the District Board of Education (Board) approved Proposition S, authorizing the District to sell up to $2.1 billion in general obligation bonds for the construction, reconstruction, or replacement of school facilities, including a project to upgrade Hoover High School athletics facilities (project). The project would include football stadium bleacher replacement and new lighting for the football field. The District completed an initial study and the Board adopted a mitigated negative declaration (MND) finding there was no substantial evidence the project, as mitigated, would have a significant effect on the environment. Additionally, the Board adopted a resolution exempting projects at Hoover and 11 other high schools from city zoning and land use laws.
The court first looked at whether the District could use Proposition S funds to provide new stadium lighting at Hoover High School. The voters’ pamphlet description of Proposition S enumerated specific projects that would be funded by the bonds. The pamphlet included the words “field lighting,” however, the court held that the measure only provided lighting costs that were necessary for the completion of the enumerated projects, which did not include new stadium lights.
Regarding the CEQA claims, Taxpayers alleged the project description was misleading and caused the District to underestimate the project’s potential environmental impacts. Specifically, Taxpayers argued the description of the anticipated number of evening events to be held at the football stadium after project completion was misleading. The court disagreed, explaining that CEQA only required the District to make a “fair assessment or “estimate” of the number of evening events and that the District’s estimate was adequate. Additionally, the court held CEQA does not require the District to limit evening events to a finite number in the project description.
Taxpayers also argued the MND was flawed because it improperly calculated evening event attendance. The District used zero as a baseline for attendance at evening events because no evening events currently existed. The District then calculated the expected attendance after completion of the project based on the average attendance at football games at five of the District’s 16 high schools. The court found this methodology flawed because the baseline should have taken into consideration attendance of afternoon games at Hoover High School and the record lacked evidence to support the estimated attendance. The court held the District was therefore unable to adequately compare the baseline attendance to expected attendance in determining whether there was a fair argument that the project may have significant impact on traffic and/or parking.
The court also agreed with Taxpayers that an EIR was required for the project because a fair argument could be made that the project may result in significant parking and traffic impacts. The court disagreed with the District’s assertion that parking impacts do not constitute a significant impact on the environment under CEQA. In doing so, the court expressly disagreed with a Second Circuit opinion, San Franciscans Upholding the Downtown Plan v. County of San Francisco (2002) 102 Cal.App.4th 656, which held that parking was merely a social inconvenience that could only be addressed under CEQA as a secondary impact, if at all. The court pointed to CEQA Guidelines explaining that while the guidelines do not set forth an exclusive list of all potential impacts that must be addressed if “substantial evidence of potential impacts that are not listed . . . must also be considered.” (Guidelines, append. G.) The Court held that parked cars are physical objects and can therefore have a direct impact on the physical environment. The court explained personal observations and opinions of local residents constituted substantial evidence that the project may have a significant impact on parking and therefore parking impacts should have been treated as a direct physical impact.
The court also found there was substantial evidence to support a fair argument that the project may have significant traffic impacts. The court explained that, despite the District’s faulty attendance analysis (discussed above), consensus was the project would cause evening attendance to increase, and therefore a fair argument existed that the project may have significant impacts on traffic and circulation.
Lastly, the court held the Board’s adoption of a resolution exempting projects at Hoover and 11 other high schools from city zoning and land use laws was proper and was not a “project” within the meaning of CEQA. The court held the adoption of the resolution was neither an “approval” nor a “project.” It was not an “approval” because it did not commit the District to “a definite course of action in regard to a project.” (Guidelines, § 15352, subd. (a).) It was not a “project” because it 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.) The term project does not mean each separate governmental approval. (CEQA Guidelines, § 15378, subd (c).) However, the actual approval of each of the 12 projects, which the resolution makes exempt from city zoning and land use laws, are considered projects under CEQA. Each will require CEQA review before approval.
The decision creates a split in authority concerning the requirement to analyze parking shortages pursuant to CEQA. Until the Supreme Court addresses this disagreement between First and Fourth District Courts of Appeal, the cautious approach would be to analyze potential impacts to parking as part of the environmental analysis for projects.