Kitty Moore - 3-11-2018 12-11 p.m. - GG - Applicability of SB 50M
SHUTE MIHALY
&WEINBERGERLLP
396 HAYES STREET, SAN FRANCISCO, CA 94102 ELLEN J. GARBER
T: 415 552-7272 F: 415 552-5816 Attorney
www.smwlaw.com garber@smwlaw.com
MEMORANDUM
TO: Carol Korade, City Attorney
FROM: Ellen J. Garber
DATE: February 25, 2014
RE: Application of SB 50 to Consideration of Development Applications
INTRODUCTION and SUMMARY OF CONCLUSIONS
The Leroy F. Greene School Facilities Act of 1998 ("SB 50")1 preempts the issue
of impacts of new development on school facilities. Therefore, if a developer agrees to
pay the fees established by SB 50, the impacts on school facilities may not be analyzed
under the California Environmental Quality Act ("CEQA"),2 no mitigation for impacts on
school facilities may be required, and the project may not be denied due to impacts on
schools or due to the inadequacy of school facilities. Hence, state law limits the City's
discretion to (i) consider the effects of new development on the ability of schools to
accommodate enrollment, (ii) require mitigation, and (iii) deny projects.
A relatively recent case, Chawanakee Unified School District v. County of Madera
(2011) 196 Cal. App. 4th 1016, holds that development applications may be analyzed
under CEQA, and mitigation may be required, if the potential impacts are indirectly
caused by the operation or construction of schools on the non -school physical
environment.
' Gov. Code § § 65995-65998 and Educ. Code § § 17620-17621.
2 Pub. Resources Code § 21000 et seq.
Memo to Carol Korade, City Attorney
February 25, 2014
Page 2
DISCUSSION
I. SB 50
Pursuant to SB 50, which was enacted in 1998, impacts on school facilities are not
to be considered in an EIR, and SB 50 fees constitute adequate mitigation of those
impacts. As SB 50 states, payment of fees "shall be the exclusive method[] of
considering and mitigating impacts on school facilities," and "are ... deemed to provide
full and complete school facilities mitigation. Gov. Code §§ 65996 (a) and (b). See Part
II, below. In addition,
A state or local agency may not deny or refuse to approve a
legislative or adjudicative act, or both, involving, but not
limited to, the planning, use, or development of real property,
or any change in governmental organization or reorganization
as defined in Section 56021 or 56073 on the basis of a
person's refusal to provide school facilities mitigation that
exceeds the amounts authorized pursuant to this section or
pursuant to Section 65995.5 or 65995.7, as applicable.
Gov. Code § 65995(i).
Even where applicants have agreed to pay school impact mitigation fees, however,
if the proposed development, including the school expansion it requires, would cause
other environmental impacts—traffic or construction impacts, for example—then those
impacts to non -school resources may be analyzed under CEQA. This is discussed in Part
III, below.
II. Impacts of New Development On School Facilities
SB 50 limited the scope of CEQA analysis of impacts on school facilities, making
the fees set forth in Government Code section 65995 "the exclusive means of both
`considering' and `mitigating' school facilities impacts of projects. The provisions of
[S.B. 50] are `deemed to provide full and complete school facilities mitigation."' Kostka
& Zischke, Practice Under the California Environmental Quality Act (2012), § 14.28
(citations omitted). According to the Kostka & Zischke treatise, SB 50 appears to
transform CEQA review of impacts on school facilities into a ministerial function after
the applicant agrees to pay the required mitigation fees. Id., § 14.28 (concluding that the
law limits not only mitigation but also the scope of the EIR).3 No case expressly reached
3 Cf. 9 Miller & Starr, Cal. Real Estate (3d ed. 2001) § 25.49, 25-213 to 25-214,
fns. omitted ("SB 50 employs three primary means to preempt the field of development
(footnote continued) SHUTE M I H A LY
&� WEINBERGERLLP
Memo to Carol Korade, City Attorney
February 25, 2014
Page 3
this conclusion until the Chawanakee Unified School District case, discussed below, but
logic seemed to dictate this outcome based on the statutory language.
Therefore, if a project applicant has agreed to pay school mitigation fees, the lead
agency may not consider the following items in an EIR, nor deny the project based on
these considerations:
• impacts on the physical structures at the school (on school grounds, school
buildings, etc.) related to the ability to accommodate enrollment;
• mitigation measures above and beyond the school mitigation fee ;
• other non -fee mitigation measures the school district's ability to accommodate
enrollment.
3. Physical Effects on the Environment Because of School Facilities
Despite the restrictions on environmental review and mitigation discussed above,
SB 50 also states that "[n]othing in this section shall be interpreted to limit or prohibit the
ability of a local agency to mitigate the impacts of land use approvals other than on the
need for school facilities, as defined in this section." Gov. Code, § 65996(e). This leaves
the agency free to reject a project based on impacts other than impacts on the need for
"school facilities.
"4 Any number of impacts could fall outside of this definition; for
example, impacts on wildlife in the development site, impacts on air quality, or
inadequate water supply.
fees and mitigation measures related to school facilities and to overturn [Mira and its
progeny]. First, it provides for a cap on the amount of fees, charges, dedications or other
requirements which can be levied against new construction to fund construction or
reconstruction of school facilities. Second, SB 50 removes denial authority from local
agencies by prohibiting refusals to approve legislative or adjudicative acts based on a
developer's refusal to provide school facilities mitigation exceeding the capped fee
amounts, or based on the inadequacy of school facilities. Third, it limits mitigation
measures which can be required, under the California Environmental Quality Act or
otherwise, to payment of the statutorily capped fee amounts and deems payment of these
amounts `to provide full and complete school facilities mitigation [.] "' (emphasis in
original).
4 SB 50 defines "school facilities" as "any school -related consideration relating to
a school district's ability to accommodate enrollment." Gov. Code § 65996(c).
SHUTE MIHALY
&� WEINBERGERLLP
Memo to Carol Korade, City Attorney
February 25, 2014
Page 4
In 2011, the court in Chawanakee Unified School District carefully interpreted the
statutory language of SB 50 and held that while an EIR need not analyze the impacts on
school facilities as a result of accommodating more students, the document must consider
the impacts on traffic of additional students traveling to the school and consider other
impacts to the non -school physical environment from construction of additional facilities.
196 Cal. App. 4th at 1028-1029.5
Courts have found the physical activities caused by school growth to be outside
the definition of "school facilities," and therefore not shielded from review by SB 50.
For example, as discussed above, Chawanakee Unified School District interpreted the
traffic associated with more students traveling to a school to be something other than
impacts on school facilities, and therefore subject to review and mitigation under CEQA.
Accordingly, traffic impacts resulting from more students traveling to the school, dust
and noise from construction of new or expanded school facilities, and any other impacts
to the non -school physical environment were not impacts on "school facilities," and must
be addressed in an EIR. According to the court in Chawanakee:
Consequently, the phrase `impacts on school facilities' used in
SB 50 does not cover all possible environmental impacts that
have any type of connection or relationship to schools. As a
matter of statutory interpretation ... the prepositional phrase
`on school facilities' limits the type of impacts that are excused
from discussion or mitigation to the adverse physical changes
to the school grounds, school buildings and `any school -related
consideration relating to a school district's ability to
accommodate enrollment.' Therefore, the project's indirect
impacts on parts of the physical environment that are not
school facilities are not excused from being considered and
mitigated.
196 Cal. App. 4th at 1028 (internal citation omitted).
Hence, the lead agency must determine whether impacts fall outside the definition
of "school facilities," thereby making them subject to environmental review. In light of
the Chawanakee case, however, the agency's discretion to conduct environmental review,
to require mitigation, and to consider denying the would be limited to physical effects on
the non -school environment.
5 While SB 50 was not at issue in this case, in City of Long Beach v. Los Angeles
Unified School Dist. (2009) 176 Cal. App. 4th 889 the court held that an EIR prepared in
connection with the construction of a new school properly analyzed health and safety
issues, air quality, traffic impacts, and land use issues.
SHUTE MIHALY
&� WEINBERGERLLP
Memo to Carol Korade, City Attorney
February 25, 2014
Page 5
Therefore, a lead agency may consider, in an EIR, among other factors the
following impacts potentially caused by school expansion or construction:
• traffic impacts associated with more students traveling to school;
• dust and noise from construction of new or expanded school facilities;
• effects of construction of additional school facilities (temporary or permanent)
on wildlife at the construction site;
• effects of construction of additional school facilities on air quality;
• other "indirect effects" as defined by CEQA Guidelines § 15258 (a)(2)
(growth -inducing effects, changes in pattern of land use and population
density, related effects on air and water and other natural systems). See
Chawanakee Unified School District, 196 Cal. App. 4th at 1029.
CONCLUSION
When it comes to arguments about the impact of a proposed development on
existing school facilities and their ability to accommodate more students, the CEQA
process is essentially ministerial. Agencies must accept the fees mandated by SB 50 as
the exclusive means of considering and mitigating the impacts of the proposed
development on school facilities. However, nothing in SB 50 or in CEQA or current case
law prohibits an agency from conducting environmental review of an application that
creates significant environmental impacts on non -school -facility settings or sites,
regardless of whether the applicant has agreed to pay mitigation fees under SB 50.
567716.2
SHUTE MIHALY
&� WEINBERGERLLP