Taxpayers for Accountable School Bond
Spending v. San Diego
School Dist.
Filed 3/26/13 Taxpayers for Accountable School Bond
Spending v. San
Diego Unif.
School Dist. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SCHOOL BOND SPENDING,
Plaintiff and Appellant,
v.
SAN DIEGO
UNIFIED SCHOOL DISTRICT,
Defendant and Respondent.
D060999
(Super. Ct.
No.
37-2011-00085714-CU-WM-CTL)
APPEAL from
a judgment of the Superior Court
of
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
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" 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.
title="">[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.)[.]" 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.
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 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
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.' " (
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:
"(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)
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. 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. (
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." (
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
. . . ." (
727, 735.) Furthermore, "[c]ourts
should interpret statutes or written instruments so as to give force and effect
to every provision and not in a way which would render words or clauses nugatory,
inoperative or meaningless." (
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 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
·
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.
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),
[¶] . . . [¶]
·
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 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 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.
name="_ftnref3" title="">[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
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 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" 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
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 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 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.)
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.]
"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];
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 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),
name="_ftnref4" title="">[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.
title="">[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.
II
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
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.' " (
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 '
added.) 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
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 (
"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.' " (
Cal.App.4th 322, 330-331 (Mejia).) In that context, "may" means a
effect on the environment. (Pub.
Resources Code, §§ 21082.2, subd. (a), 21100, 21151, subd. (a);
(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 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."
title="">[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,
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." ' [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 (
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 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
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.
name="_ftnref8" title="">[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. . . ."
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 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.
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
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 Greenâ„¢ 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 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 Greenâ„¢ 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.
name="_ftnref11" title="">[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 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 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,
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 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.
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 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.
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).
name="_ftnref14" title="">[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
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
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 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
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."
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,
| Description | 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. |
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