Taxpayers etc. v. San Diego USD

Filed 3/26/13; pub. order 4/25/13 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TAXPAYERS FOR ACCOUNTABLE D060999

SCHOOL BOND SPENDING,

Plaintiff and Appellant,

(Super. Ct. No.

v. 37-2011-00085714-CU-WM-CTL)

SAN DIEGO UNIFIED SCHOOL

DISTRICT,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Timothy

B. Taylor, Judge. Affirmed in part, reversed in part and remanded with directions.

Plaintiff Taxpayers for Accountable School Bond Spending (Taxpayers) appeals a

judgment entered against it in its action against defendant San Diego Unified School

District (District) arising out of Proposition S and District's approval of installation of

new stadium field lighting and other improvements at Hoover High School (Hoover). In

its operative first amended complaint against District, Taxpayers alleged four causes of

action: (1) a Code of Civil Procedure section 526a cause of action for waste and misuse

of Proposition S funds; (2) a California Environmental Quality Act (CEQA) cause of

action for District's wrongful adoption of a mitigated negative declaration for the project

at Hoover; (3) a cause of action for District's violation of the City of San Diego's (City)

zoning and land use laws; and (4) a cause of action for District's violation of Government

Code section 53094 by exempting the Hoover project and certain other high school

projects from City's zoning and land use laws. On appeal, Taxpayers generally contends

the trial court erred because: (1) Proposition S did not specifically list or otherwise

include field lighting for Hoover or other schools for funding from bond proceeds; (2)

there is substantial evidence in the administrative record that the Hoover project may

have a significant effect on the environment within the meaning of CEQA; and (3)

District's resolution pursuant to Government Code section 53094 exempting Hoover and

other high schools from City's zoning and land use laws is invalid because inadequate

notice was given, the exemption of classroom and nonclassroom facilities is overbroad,

and that exemption action is a project requiring compliance with CEQA.

FACTUAL AND PROCEDURAL BACKGROUND

On July 23, 2008, District's Board of Education (Board) approved a resolution to

place on the November 4, 2008, election ballot a proposition (Proposition S) to authorize

District to sell up to $2.1 billion in general obligation bonds for the construction,

reconstruction, rehabilitation, or replacement of school facilities as listed or otherwise

described in Exhibit A attached to the resolution, which set forth the full text of

Proposition S. Proposition S is entitled "San Diego School Repair and Safety Measure"

2

and contains a list of specific projects for Hoover, including projects to

"[r]enovate/replace stadium bleachers, including press box" and to "[u]pgrade fields,

track, and courts for accessibility compliance." On November 4, 2008, voters approved

Proposition S.1

Soon thereafter, District began the CEQA review process for a proposed project to

upgrade Hoover athletics facilities, including football stadium bleacher replacement and

new lighting for the football field. In or about October 2010, District completed an initial

study of the project under CEQA (Initial Study). The Initial Study described the

proposed project (Project) as including "the construction and operation of upgraded

athletic facilities on the Hoover High School campus in the City of San Diego. . . . In

addition to upgrading the athletic facilities, the proposed project would include the

installation of additional parking spaces, stadium lighting, and provide Americans with

Disabilities Act (ADA) compliant facilities." (Italics added.) The Project would replace

the football and track field home and visitor side bleachers and reduce the home side

bleachers from 4,190 seats to 2,796 seats and the visitor side bleachers from 1,445 seats

to 1,174 seats. The Project would also "[i]nstall new lighting for the football field (two

100 foot light standards on south side of football field and two 90 foot light standards on

north side of football field). The field lighting would be focused and directed at the field

1 Although the parties do not cite, and the record does not appear to contain, any

document showing the results of the Proposition S vote, the parties represent that the

voters approved Proposition S, presumably by at least the 55 percent minimum vote

required by article XIII A, section 1 of the California Constitution (Proposition 39).

Accordingly, for purposes of this opinion, we presume the voters approved Proposition S.

3

area during school events, including sporting events (i.e., football, soccer, track) that

occur after dusk. It is anticipated that field lighting will be dimmed at the conclusion of

the event and after all patrons have safely exited the facility (estimated at 9:00 p.m.).

Subsequently, the facility would be cleaned and the field lights will be extinguished

(estimated at 10:00 p.m.)[.]" Furthermore, the Project included installation of a new

public announcement (PA) system and construction of a 268-foot long, 11-foot high

concrete masonry wall on the north side of the visitor bleachers parallel to Monroe

Avenue, which wall would "serve to visually screen the bleachers from the surrounding

neighborhood." The Project would also increase the number of on-campus parking

spaces from 167 spaces to 223 spaces. Regarding the anticipated usage of the athletic

facilities, the Initial Study stated:

"Existing events conducted on the football field that were possible

only during daylight hours or with temporary lights could now occur

in the evening. These existing events include football, boys and girls

soccer, and track and field. The District anticipates that

approximately 15 evening events would occur with implementation

of the [Project]. The traffic and crowd control measures currently in

place for events at the school will be implemented for evening

events made possible by the installation of stadium lighting, as

determined necessary by school officials. The District notes that due

to routine practices and the potential for unforeseen events, such as

playoff games, a few more events may occur. . . ."

James Watts, District's director of planning, signed the Initial Study finding that noise

was the only potentially significant impact of the Project on the environment and

revisions were made to reduce that impact to less than significant. He stated that a

mitigated negative declaration would be prepared for the Project.

4

On October 15, 2010, District published a notice of intent to adopt a mitigated

negative declaration (MND) for the Project. A draft MND was made available to the

public, which had 30 days to submit written comments regarding the draft MND. On

October 25, District held a community meeting to discuss the Project and receive public

input. District received, and prepared responses to, comment letters regarding the

Project.

On January 11, 2011, the Board adopted a resolution finding there is no substantial

evidence the Project, as mitigated, would have a significant effect on the environment.

The Board also adopted the Initial Study and the MND, along with the mitigation

monitoring and reporting program (MMRP) for the Project. On January 12, District filed

a notice of determination with the County of San Diego, stating: (1) it had approved the

Project; (2) the Project will not have a significant effect on the environment; (3) a

negative declaration had been prepared for the Project; (4) mitigation measures were

made a condition of approval of the Project; and (5) an MMRP was adopted for the

Project.

On May 10, 2011, the Board approved a resolution pursuant to Government Code

section 53094 exempting projects at Hoover and 11 other high schools, along with the

school sites of those 12 high schools, from City's zoning and land use laws. On May 12,

District served City with notice of its exemption action.

In February 2011, Taxpayers filed the instant action against District. In July 2011,

Taxpayers filed its operative first amended complaint against District, alleging the four

causes of action described above. The trial court set the hearing on the CEQA cause of

5

action for August 25 and the hearing on the non-CEQA causes of action for September

30. On September 27, the court issued a statement of decision dismissing Taxpayers's

CEQA cause of action. On October 26, the court issued a statement of decision

dismissing Taxpayers's non-CEQA causes of action. The trial court then entered

judgment for District. Taxpayers timely filed a notice of appeal.

DISCUSSION

I

Proposition S

Taxpayers contends the trial court erred by dismissing its first cause of action

because Proposition S did not specifically list or otherwise include field lighting for

Hoover or other schools to be funded from bond proceeds, as required by the California

Constitution for school facility bonds under Proposition 39.

A

" 'The usual method of funding new school construction in California has been for

school districts to obtain voter approval for the issuance of general obligation bonds. . . .

The bonds are repaid by an annual levy of an ad valorem tax on real (and certain

personal) property located within the area of the district.' " (San Lorenzo Valley

Community Advocates for Responsible Education v. San Lorenzo Valley Unified School

Dist. (2006) 139 Cal.App.4th 1356, 1395 (San Lorenzo).) Article XIII A, section 1,

subdivision (b), of the California Constitution provides an exception to the 1 percent ad

valorem tax limit on real property to the extent certain bonds are approved by the voters,

including:

6

"(2) Bonded indebtedness for the acquisition or improvement of real

property approved on or after July 1, 1978, by two-thirds of the

votes cast by the voters voting on the proposition.

"(3) Bonded indebtedness incurred by a school district . . . for the

construction, reconstruction, rehabilitation, or replacement of school

facilities, including the furnishing and equipping of school facilities,

or the acquisition or lease of real property for school facilities,

approved by 55 percent of the voters of the district . . . voting on the

proposition on or after the effective date of the measure adding this

paragraph. This paragraph shall apply only if the proposition

approved by the voters and resulting in the bonded indebtedness

includes all of the following accountability requirements:

"(A) A requirement that the proceeds from the sale of the bonds be

used only for the purposes specified in Article XIII A, Section

1(b)(3), and not for any other purpose, including teacher and

administrator salaries and other school operating expenses.

"(B) A list of the specific school facilities projects to be funded and

certification that the school district board . . . has evaluated safety,

class size reduction, and information technology needs in developing

that list.

"(C) A requirement that the school district board . . . conduct an

annual, independent performance audit to ensure that the funds have

been expended only on the specific projects listed.

"(D) A requirement that the school district board . . . conduct an

annual, independent financial audit of the proceeds from the sale of

the bonds until all of those proceeds have been expended for the

school facilities projects." (Italics added.)

California Constitution, article XIII A, section 1, subdivision (b)(3), was added when

California voters passed Proposition 39 on November 7, 2000. (Prop. 39, § 4, as

approved by voters, Gen. Elec. (Nov. 7, 2000); Cal. Const., art. XXX A, § 1, subd.

(b)(3).) Prior to November 2000, school districts, like other government agencies, were

required to attain a two-thirds vote for bonds to acquire or improve real property. (Cal.

7

Const., art. XIII A, § 1, subd. (b)(2); Foothill-De Anza Community College Dist. v.

Emerich (2007) 158 Cal.App.4th 11, 19.) Proposition 39, also known as the "Smaller

Classes, Safer Schools, and Financial Accountability Act," reduced the required voter

approval from two-thirds to 55 percent for a school facility bond proposition that satisfies

its requirements, as quoted above. (Prop. 39, § 4, as approved by voters, Gen. Elec.

(Nov. 7, 2000); Cal. Const., art. XIII A, § 1, subd. (b)(3); Foothill, at p. 19.) Education

Code sections 15264 through 15284 implement Proposition 39. (San Lorenzo, supra, 139

Cal.App.4th at p. 1396, fn. 9; Foothill, at p. 20.)

B

"In interpreting a voter initiative, we apply the same principles that govern our

construction of a statute. [Citation.] We turn first to the statutory language, giving the

words their ordinary meaning. [Citation.] If the statutory language is not ambiguous,

then the plain meaning of the language governs. [Citation.] If, however, the statutory

language lacks clarity, we may resort to extrinsic sources, including the analyses and

arguments contained in the official ballot pamphlet, and the ostensible objects to be

achieved." (People v. Lopez (2005) 34 Cal.4th 1002, 1006.) We apply the same rules

when interpreting constitutional and statutory provisions. (See, e.g., Committee for

Responsible School Expansion v. Hermosa Beach City School Dist. (2006) 142

Cal.App.4th 1178, 1186 (Hermosa).) "If the language is clear and unambiguous[,] there

is no need for construction, nor is it necessary to resort to indicia of the intent . . . of the

voters . . . ." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) Furthermore,

"[c]ourts should interpret statutes or written instruments so as to give force and effect to

8

every provision and not in a way which would render words or clauses nugatory,

inoperative or meaningless." (Hermosa, at p. 1189.)

Because interpretation of a constitutional provision or voter initiative is a question

of law, we perform that interpretation de novo, or independently, and are not bound by

the trial court's analysis or conclusion. (Apartment Assn. of Los Angeles County, Inc. v.

City of Los Angeles (2001) 24 Cal.4th 830, 836 [independent interpretation of voter

initiative as a question of law]; cf. Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494,

1502 [independent interpretation of statute as a question of law].)

C

The November 2008 election ballot included the following description of

Proposition S:

"SAN DIEGO SCHOOL REPAIR AND SAFETY MEASURE. To

improve every neighborhood school by[:] repairing outdated student

restrooms, deteriorated plumbing and roofs; upgrading

career/vocational classrooms and labs; providing up-to-date

classroom technology; improving school safety/security; replacing

dilapidated portable classrooms; upgrading fire alarms; and

removing hazardous substances; shall San Diego Unified School

District issue $2,100,000,000 in bonds at legal interest rates,

requiring independent citizen oversight, annual audits, NO money

for administrators, and bonds issued only if NO estimated tax rate

increase?"

The voters' pamphlet included the full text of Proposition S. Proposition S stated its

purpose was "[t]o provide financing for the specific school facilities projects listed in the

Bond Project List below." It required District to "establish an independent Citizens'

Oversight Committee . . . to ensure bond proceeds are spent only for the school facilities

projects listed in the Bond Project List" and "conduct an annual, independent

9

performance audit to ensure that the bond proceeds have been expended only on the

school facilities projects listed in the Bond Project List."

Proposition S then set forth its "Bond Project List," consisting of two parts. Part

One of the Bond Project List authorized: (1) each school site to allocate $150 per student

of bond proceeds to be spent on qualified, permitted projects; and (2) specific projects "to

be completed at each or any of the District's sites." Those specific projects to be

completed at all school sites under Part One included: (1) certain improvements to

support student health, safety, and security (e.g., "[p]rovide school site security

improvements, including increased lighting, and vandalism and intrusion safeguards");

(2) certain projects to improve school accessibility and code compliance upgrades (e.g.,

"[m]odernize and renovate physical education facilities, playgrounds and fields for

accessibility and safety"); and (3) certain improvements to support student learning and

instruction.

In addition to the specific projects generally authorized for all schools in Part One,

Part Two listed specific projects authorized to be completed for particular school sites.

Part Two of Proposition S authorized 26 specific projects to be completed at Hoover,

including:

"Projects to Improve School Accessibility, Code Compliance

Upgrades

Renovate existing restrooms and locker rooms

Renovate gymnasium building to meet accessibility

regulations

Provide accessible, compliant wrestling room

10

Improve accessibility to all classrooms, labs, restrooms, and

other school facilities to comply with accessibility

regulations, including ADA Titles I & II

Install three-compartment sink and hand sink in kitchen

Renovate/replace stadium bleachers, including press box

Upgrade fields, track, and courts for accessibility compliance

Build new two-story classroom building to replace old

portable classrooms

Provide accessible restrooms with storage for athletic

equipment" (Italics added.)

After listing specific projects for particular school sites, Part Two set forth three

additional projects that were not for particular sites.2

Most importantly for this appeal, Proposition S then authorized bond proceeds to

be used for election, bond, construction and other costs incidental to and necessary for

completion of its listed projects, stating:

"Each project listed is assumed to include its share of costs of the

election and bond issuance and other construction-related costs, such

as construction management, architectural, engineering, inspection

and other planning costs, legal, accounting and similar fees,

independent annual financial and performance audits, a customary

construction contingency, and other costs incidental to and

necessary for completion of the listed projects (whether work is

performed by the District or by third parties), including: [¶] . . . [¶]

Repair, upgrade, modify, expand, refinish, replace and

construct site improvements, including off-street parking

areas, pickup/dropoff, signage, paths, sidewalks and

walkways, canopies, hard courts (student play areas), athletic

2 Those additional projects to be completed were: (1) "[p]rovide matching funds to

construct classrooms and schools to accommodate enrollment growth for new housing

developments in the Miramar area;" (2) "[r]etrofit and build classrooms, labs and

facilities to improve specialized instruction;" and (3) "[p]rovide matching funds to

construct classrooms and schools in the downtown area to meet educational needs of the

[D]istrict."

11

play fields, landscaping, irrigation, permanent athletic field

equipment and facilities (including nets, basketball standards,

goals and goalposts, backstops), field lighting, etc." (Italics

added.)

D

Taxpayers contends the trial court erred by interpreting Proposition S as

specifically including and authorizing new field lighting for Hoover's football stadium.

Based on our independent interpretation of the plain language of Proposition S, we agree

the court so erred.

We italicized above Proposition S's relevant, and ultimately dispositive, language.

In support of its position that field lighting is specifically listed and authorized by

Proposition S, District relies solely on the words "field lighting" contained in the last

paragraph of Part Two. However, contrary to District's apparent assertion, those words

do not stand alone as an independently listed project for Hoover and all other school sites.

Rather, the words "field lighting" must be read in the context of all the language of

Proposition S and, in particular, Part Two. District does not assert, and could not

reasonably assert, there is any provision in Part One that could reasonably be interpreted

as including, either expressly or implicitly, new stadium lighting for Hoover.

Accordingly, we examine the language of Part Two to determine whether it could support

District's proposed interpretation. As noted above, Part Two lists specific projects to be

completed for particular school sites. Regarding Hoover, Part Two specifically lists two

projects relating to its football stadium: "[r]enovate/replace stadium bleachers, including

press box" and "[u]pgrade fields, track, and courts for accessibility compliance." The

12

first project relates to the stadium's bleachers and press box. The plain and ordinary

meaning of "bleachers" is the structure that provides seating for those who attend stadium

events.3 The renovation or replacement of the stadium's seating does not expressly

include lighting for the field, and it cannot reasonably be argued that field lighting is

implicitly included in that project. Likewise, it cannot reasonably be argued that field

lighting is expressly or implicitly included in the renovation or replacement of the

stadium's press box.

Regarding the second project relating to Hoover's football stadium, Part Two of

Proposition S specifically authorizes the use of bond proceeds to "[u]pgrade fields, track,

and courts for accessibility compliance." As that language pertains to Hoover's football

field, the plain and clear meaning of Part Two authorizes the use of bond funds to

upgrade the football field "for accessibility compliance." Part Two does not authorize a

"general" or nonspecific upgrading of the football field, which arguably could include the

addition of new field lighting. Rather, the qualifying phrase "for accessibility

compliance" places a specific limitation on the nature and extent of the upgrade to the

football field. Any upgrade to the football field must be "for accessibility compliance,"

which, in general, means compliance with ADA laws and regulations so that disabled

persons can access and use the field as required by law. District does not cite, and we are

not aware of, any ADA law or regulation that could reasonably be construed as requiring

3 Because it is common knowledge what "bleachers" are, we need not further

describe them.

13

football field lighting as proposed in the Project (i.e., two 90-foot standards and two 100-

foot standards with a total of 60 luminaires that each produce an average of 134,000

lumens). Therefore, it cannot reasonably be argued that field lighting is expressly or

implicitly included in the upgrading of the football field for accessibility compliance, as

specifically listed in and authorized by Part Two.

Because the projects specifically listed in and authorized by Part Two for Hoover's

football stadium, as well as the projects specifically listed and authorized by Part One for

all school sites, as we concluded above, do not include stadium field lighting, we look to

other language in Proposition S that arguably could authorize that lighting. The only

other language in Proposition S that arguably could support funding for Hoover's new

field lighting, and the only language on which District relies, are the words "field

lighting" contained in the last paragraph of Part Two. However, those words do not stand

alone in that paragraph as an independent, or separately listed, project. Rather, as quoted

above, those words are preceded by language in that paragraph that plainly and clearly

indicates "field lighting" is authorized only to the extent it is "incidental to and necessary

for completion of the listed projects." After deleting irrelevant language from that

paragraph, it provides: "Each project listed is assumed to include . . . other costs

incidental to and necessary for completion of the listed projects . . . , including [¶] . . . [¶]

. . . field lighting." (Italics added.) Therefore, to the extent Proposition S did not

expressly include certain costs in its prior authorization of specifically listed projects,

Part Two's final paragraph authorizes the use of bond funds to pay for "other costs

incidental to and necessary for completion of the listed projects." Those "other costs"

14

directly relate to, and are based on, the projects specifically listed in Proposition S.

Furthermore, those "other costs" are authorized by Proposition S only to the extent those

costs are "incidental to and necessary for completion of" the specifically listed projects.

In this context, we conclude the only reasonable interpretation of the words "field

lighting" in the final paragraph of Part Two is the authorization to use bond funds to pay

for "field lighting" costs "incidental to and necessary for completion of" the projects

specifically listed in Proposition S. In the instant matter, the use of bond funds to pay for

"field lighting" for Hoover's football stadium would be authorized only if that lighting

was incidental to and necessary for completion of a project specifically listed in

Proposition S for Hoover. Contrary to District's assertion, new "field lighting" for

Hoover's football stadium is not an independent, specifically listed project of its own in

Proposition S. Rather, "field lighting" must be tethered to, and based on, a listed project

expressly authorized elsewhere in Proposition S. Absent that tether, the use of

Proposition S bond proceeds to pay for "field lighting" is not authorized for Hoover's

football stadium. Based on our reading of Proposition S, there is no listed project for

Hoover that provides that tether and authorizes funding for field lighting. Part Two does

not specifically list any project to which field lighting could be tethered under the final

paragraph of Part Two. As discussed above, Part Two specifically lists certain projects

for Hoover, including: "[r]enovate/replace stadium bleachers, including press box" and

"[u]pgrade fields . . . for accessibility compliance." Neither of those specifically listed

projects can reasonably be construed as including field lighting as "incidental to and

necessary for [their] completion." Field lighting is not incidental to and necessary for the

15

completion of the renovation or replacement of the stadium bleachers or the press box.

Likewise, field lighting is not incidental to and necessary for the completion of the

upgrading of the football field for accessibility compliance. We conclude Proposition S

does not authorize the use of bond funds to pay for new field lighting for Hoover's

football stadium or for other high schools' stadiums for which Proposition S did not

specifically list field lighting as part of their projects. The trial court erred by concluding

otherwise and dismissing Taxpayers's first cause of action.

E

District asserts Taxpayers did not have standing to challenge its use of Proposition

S bond funds to pay for new field lighting for Hoover's football stadium. District argues

Taxpayers lacks standing under Education Code section 15284, subdivision (a), because

it has not alleged any individual harm.

However, Taxpayers's first amended complaint did not assert standing under

Education Code section 15284, subdivision (a), but rather Code of Civil Procedure

section 526a. That statute provides:

"An action to obtain a judgment, restraining and preventing any

illegal expenditure of, waste of, or injury to, the estate, funds, or

other property of a county, town, city or city and county of the state,

may be maintained against any officer thereof, or any agent, or other

person, acting in its behalf, either by a citizen resident therein, or by

a corporation, who is assessed for and is liable to pay, or within one

year before the commencement of the action, has paid, a tax

therein. . . ."

In its first amended complaint, Taxpayers alleged it "is a not-for-profit registered

fictitious business entity . . . and is intended to operate as a tax exempt nonprofit

16

corporation, which along with its members and supporters, [who] reside within [City] and

within the boundaries of the District, are residents and taxpayers within said geographical

area of the District and have paid taxes within at least the last fiscal and calendar tax

years." Taxpayers further alleged it had "standing to enforce such laws that are designed

to control the expenditure of public-approved school bond money and protect and enjoin

against inappropriate use of said moneys."

District does not argue Taxpayers's members would not have standing as

individuals to assert the instant cause of action, but rather that Taxpayers, as a

representative organization, does not have standing because it does not pay taxes as an

organization. However, District does not cite, and we are not aware of, any case that

holds a representative organization cannot bring a taxpayer action under Code of Civil

Procedure section 526a or a citizen action if that organization represents members who,

as individuals, would have standing to personally bring that cause of action. On the

contrary, it has been held a representative organization or association may have standing

to bring an action if its members would have had standing to bring that action as

individuals. (Driving Sch. Assn. of Cal. v. San Mateo Union High Sch. Dist. (1992) 11

Cal.App.4th 1513, 1517.) Connerly v. State Personnel Bd. (2001) 92 Cal.App.4th 16, 29,

stated:

"Code of Civil Procedure section 526a permits a taxpayer to bring

an action to restrain or prevent an illegal expenditure of public

money. No showing of special damage to a particular taxpayer is

required as a requisite for bringing a taxpayer suit. [Citation.]

Rather, taxpayer suits provide a general citizen remedy for

controlling illegal governmental activity. [Citation.]

17

"Citizen suits may be brought without the necessity of showing a

legal or special interest in the result where the issue is one of public

right and the object is to procure the enforcement of a public duty.

[Citation.] Citizen suits promote the policy of guaranteeing citizens

the opportunity to ensure that governmental bodies do not impair or

defeat public rights. [Citation.]

"Taxpayer suits and citizen suits are closely related concepts of

standing. [Citation.] The chief difference is a taxpayer suit seeks

preventative relief, to restrain an illegal expenditure, while a citizen

suit seeks affirmative relief, to compel the performance of a public

duty. [Citation.] Where standing appears under either rule, the

action may proceed regardless of the label applied by the plaintiff."

(Italics added.)

Furthermore, "[t]he primary purpose of [Code of Civil Procedure section 526a],

originally enacted in 1909, is to 'enable a large body of the citizenry to challenge

governmental action which would otherwise go unchallenged in the courts because of the

standing requirement.' [Citation.] [¶] California courts have consistently construed

[Code of Civil Procedure] section 526a liberally to achieve this remedial purpose."

(Blair v. Pitchess (1971) 5 Cal.3d 258, 267-268.) Liberally construing Code of Civil

Procedure section 526a, we conclude Taxpayers has standing to bring the instant cause of

action on behalf of its members who are residents of City and District and are taxpayers.

(Cf. Los Altos Property Owners Assn. v. Hutcheon (1977) 69 Cal.App.3d 22, 24

[unincorporated association of property owners brought Code of Civil Procedure section

526a taxpayer action against school district]; Hermosa, supra, 142 Cal.App.4th at pp.

1181, 1186 [taxpayers' committee, apparently an unincorporated association, brought

Education Code section 15284 action against school district to enjoin spending

Proposition 39 bond proceeds on school gymnasium]; Common Cause v. Board of

18

Supervisors (1989) 49 Cal.3d 432, 439-440 [plaintiffs had sufficient interest as citizens to

bring action for injunction].)

Because Taxpayers correctly alleged it had standing under Code of Civil

Procedure section 526a, we need not address whether it also had standing on other

grounds. We need not address District's assertion that Taxpayers did not have standing

under Education Code section 15284, subdivision (a),4 to challenge Proposition S. In

any event, we note Education Code section 15284, subdivision (c), provides that actions

challenging the expenditure of Proposition 39 bond funds may also be brought under

other laws.5 Because Education Code section 15284 does not provide the exclusive

means for Taxpayers to challenge District's use of Proposition S bond funds, Taxpayers

could properly bring, and had standing to bring, a taxpayer action under Code of Civil

Procedure section 526a to challenge District's use of Proposition S bond funds.6

4 Education Code section 15284, subdivision (a), provides: "An action to obtain an

order restraining and preventing any expenditure of funds received by a school district

. . . through the sale of bonds authorized by this chapter pursuant to paragraph (3) of

subdivision (b) of Section 1 of Article XIII A of the California Constitution . . . may be

maintained against any officer, agent, or other person acting on behalf of, that school

district . . . , by a citizen residing in the school . . . district who is assessed and is liable to

pay an ad valorem tax on real property within the school . . . district, or who has paid an

ad valorem tax on real property within the school . . . district within one year before the

commencement of the action . . . ."

5 Education Code section 15284, subdivision (c), provides: "The rights, remedies, or

penalties established by this section are cumulative to the rights, remedies, or penalties

established under other laws, including subdivision (a) of Section 526 of Chapter 3 of

Title 7 of Part 2 of the Code of Civil Procedure."

6 Based on the same reasoning, we need not address District's argument that it was

not a proper defendant under Education Code section 15284, subdivision (a). In any

19

II

CEQA

Taxpayers contends the trial court erred by dismissing its second cause of action

alleging District violated CEQA because there is substantial evidence in the

administrative record that the Project may have a significant effect on the environment.

Taxpayers also asserts the MND's description of the Project was inaccurate and

misleading.

A

General Principles. "CEQA is a comprehensive scheme designed to provide long-

term protection to the environment. [Citation.] In enacting CEQA, the Legislature

declared its intention that all public agencies responsible for regulating activities

affecting the environment give prime consideration to preventing environmental damage

when carrying out their duties. [Citations.] CEQA is to be interpreted 'to afford the

fullest possible protection to the environment within the reasonable scope of the statutory

language.' " (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105,

112.)

"CEQA requires a governmental agency [to] prepare an environmental impact

report (EIR) whenever it considers approval of a proposed project that 'may have a

significant effect on the environment.' ([Pub. Resources Code,] § 21100, italics added.)

event, we doubt that statute should be interpreted so narrowly as to preclude an action

against the entity (e.g., school district) allegedly improperly spending Proposition 39

bond funds.

20

In addition to the intent to require governmental decision makers to consider the

environmental implications of their decisions, the Legislature in enacting CEQA also

intended to provide certain substantive measures for protection of the environment.

[Citations.] In particular, one court noted [Public Resources Code] section 21002

requires public agencies 'to deny approval of a project with significant adverse effects

when feasible alternatives or feasible mitigation measures can substantially lessen such

effects.' [Citation.] [¶] If there is no substantial evidence a project 'may have a

significant effect on the environment' or the initial study identifies potential significant

effects, but provides for mitigation revisions which make such effects insignificant, a

public agency must adopt a negative declaration to such effect and, as a result, no EIR is

required. [Citations.] However, the Supreme Court has recognized that CEQA requires

the preparation of an EIR 'whenever it can be fairly argued on the basis of substantial

evidence that the project may have significant environmental impact.' (No Oil, Inc. v.

City of Los Angeles (1974) 13 Cal.3d 68, 75 . . . ; see also Laurel Heights Improvement

Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123 . . . .) Thus, if

substantial evidence in the record supports a 'fair argument' significant impacts or effects

may occur [and will not be mitigated], an EIR is required and a negative declaration

cannot be certified." (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas

(1994) 29 Cal.App.4th 1597, 1601-1602, fn. omitted.) CEQA "creates a low threshold

requirement for initial preparation of an EIR and reflects a preference for resolving

doubts in favor of environmental review [i.e., an EIR] . . . ." (Sierra Club v. County of

Sonoma (1992) 6 Cal.App.4th 1307, 1316-1317 (Sierra Club).)

21

"A negative declaration is a written statement that briefly explains why a project

will not have a significant environmental impact and therefore will not require an EIR.

[Citation.] A negative declaration is proper only if the agency determines based on an

initial study that there is no substantial evidence that the project may have a significant

effect on the environment. [Citations.] If an initial study shows that the project may

have a significant effect on the environment, a mitigated negative declaration may be

appropriate. A mitigated negative declaration is proper, however, only if project

revisions would avoid or mitigate the potentially significant effects identified in an initial

study 'to a point where clearly no significant effect on the environment would occur, and

. . . there is no substantial evidence in light of the whole record before the public agency

that the project, as revised, may have a significant effect on the environment.' " (Mejia v.

City of Los Angeles (2005) 130 Cal.App.4th 322, 330-331 (Mejia).) In that context,

"may" means a reasonable possibility of a significant effect on the environment. (Pub.

Resources Code, §§ 21082.2, subd. (a), 21100, 21151, subd. (a); Pocket Protectors v.

City of Sacramento (2004) 124 Cal.App.4th 903, 927 (Pocket Protectors); League for

Protection of Oakland's etc. Historic Resources v. City of Oakland (1997) 52 Cal.App.4th

896, 904-905.)

A " 'significant effect on the environment' means a substantial, or potentially

substantial, adverse change in the environment." (Pub. Resources Code, § 21068.) The

CEQA Guidelines (Cal. Code of Regs., tit. 14, § 15000 et seq.; hereafter Guidelines)

define "[s]ignificant effect on the environment" as "a substantial, or potentially

substantial, adverse change in any of the physical conditions within the area affected by

22

the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of

historic or aesthetic significance. An economic or social change by itself shall not be

considered a significant effect on the environment. A social or economic change related

to a physical change may be considered in determining whether the physical change is

significant."7 (Guidelines, § 15382.) " 'Substantial evidence' . . . means 'enough relevant

information and reasonable inferences from this information that a fair argument can be

made to support a conclusion, even though other conclusions might also be reached."

(Guidelines, § 15384, subd. (a).) Substantial evidence "shall include facts, reasonable

assumptions predicated upon facts, and expert opinion supported by facts." (Guidelines,

§ 15384, subd. (b).) "Argument, speculation, unsubstantiated opinion or narrative,

evidence which is clearly erroneous or inaccurate, or evidence of social or economic

impacts which do not contribute to or are not caused by physical impacts on the

environment does not constitute substantial evidence." (Guidelines, § 15384, subd. (a).)

"The fair argument standard is a 'low threshold' test for requiring the preparation

of an EIR. [Citations.] It is a question of law, not fact, whether a fair argument exists,

and the courts owe no deference to the lead agency's determination. Review is de novo,

with a preference for resolving doubts in favor of environmental review. [Citations.] [¶]

7 The Guidelines define the "environment" as "the physical conditions which exist

within the area which will be affected by a proposed project including land, air, water,

minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.

The area involved shall be the area in which significant effects would occur either

directly or indirectly as a result of the project. The 'environment' includes both natural

and man-made conditions." (Guidelines, § 15360; see Pub. Resources Code, § 21060.5.)

23

Although our review [of the agency's and trial court's decisions] is de novo and

nondeferential, however, we must ' "giv[e] [the lead agency] the benefit of [the] doubt on

any legitimate, disputed issues of credibility." ' [Citations.] . . . [¶] Relevant personal

observations of area residents on nontechnical subjects may qualify as substantial

evidence for a fair argument. [Citations.] So may expert opinion if supported by facts,

even if not based on specific observations as to the site under review. [Citation.] . . . [¶]

. . . [M]ere argument, speculation, and unsubstantiated opinion, even expert opinion, is

not substantial evidence for a fair argument. [Citations.] . . . Neither is the mere

possibility of adverse impact on a few people, as opposed to the environment in general."

(Pocket Protectors, supra, 124 Cal.App.4th at pp. 928-929, fn. omitted.) On appeal, we

review the trial court's findings and conclusions de novo. (Mejia, supra, 130 Cal.App.4th

at p. 332.)

In determining de novo whether there is substantial evidence to support a fair

argument that a proposed project may have a significant effect on the environment, "we

limit our review to evidence in the administrative record [i.e., the whole record before the

public agency]." (Architectural Heritage Assn. v. County of Monterey (2004) 122

Cal.App.4th 1095, 1111 (Architectural Heritage); see also Pub. Resources Code,

§§ 21064.5, 21080, subds. (c) & (d), 21082.2, subds. (a) & (d).) Our review "shall extend

only to whether there was a prejudicial abuse of discretion. Abuse of discretion is

established if the agency has not proceeded in a manner required by law or if the [public

agency's] determination or decision is not supported by substantial evidence." (Pub.

Resources Code, § 21168.5.) "A court reviewing an agency's decision not to prepare an

24

EIR in the first instance must set aside the decision if the administrative record contains

substantial evidence that a proposed project might have a significant environmental

impact; in such a case, the agency has not proceeded as required by law." (Sierra Club,

supra, 6 Cal.App.4th at p. 1317.)

B

Number of Events. Taxpayers first asserts District's negative declaration was an

abuse of discretion because its description of the Project in the Initial Study was

misleading to the general public and the Board. Taxpayers argues that description of the

anticipated number of evening events was misleading and caused District to

underestimate, or inadequately address, the Project's potential environmental effects.8

Regarding the Project's anticipated events and attendance at the stadium, the Initial

Study stated:

"Existing events conducted on the football field that were possible

only during daylight hours or with temporary lights could now occur

in the evening. These existing events include football, boys and girls

soccer, and track and field. The District anticipates that

approximately 15 evening events would occur with implementation

of the [Project]. . . . The District notes that due to routine practices

and the potential for unforeseen events, such as playoff games, a few

more events may occur. . . ."9 (Italics added.)

8 Taxpayers also challenges the Initial Study's description of the change in

attendance at Hoover football stadium events from the baseline attendance before the

Project to the expected attendance were the Project to be completed. We address that

issue below in the section on traffic and parking effects.

9 Although the Initial Study did not state the period of time over which those 15

events would occur, the parties presume, and we believe it can be reasonably implied,

that the Initial Study intended to state approximately 15 evening events per year would

occur.

25

Taxpayers contends that description was misleading because it did not place a limit on

the number of evening events that would be held each year. Under CEQA, a public

agency must determine what, if any, effect on the environment a proposed project may

have. To do so, a public agency must first make a fair assessment of existing physical

conditions (i.e., baseline physical conditions) and then compare it to the anticipated or

expected physical conditions were the project to be completed, thereby allowing the

agency to focus on the nature and degree of changes expected in those physical

conditions after the project and whether those changes result in any significant effect on

the existing environment. (Guidelines, § 15125, subd. (a); Communities for a Better

Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319-

321, 328 (Communities); County of Amador v. El Dorado County Water Agency (1999)

76 Cal.App.4th 931, 955 ["An EIR [or initial study] must focus on impacts to the existing

environment, not hypothetical situations."].) "[T]he comparison must be between

existing physical conditions without the [project] and the conditions expected to be

produced by the project. Without such a comparison, the EIR [or initial study] will not

inform decision makers and the public of the project's significant environmental impacts,

as CEQA mandates." (Communities, at p. 328.)

In this case District was required to make a fair assessment or estimate of the

number of evening events to be held at Hoover's football stadium were the Project to be

completed. In the Initial Study, District stated it anticipated "approximately 15 evening

events" per year would be held were the Project to be completed. However, it added the

26

caveat that due to routine practices and unforeseen events (e.g., possible playoff games),

"a few more events may occur." A reasonable interpretation of that language is that

District anticipates 15 evening events per year will be held at Hoover's stadium, but a few

more events could be held. It is common knowledge that a "few" consists of a small

number (i.e., more than one and typically about three or four). Therefore, the Initial

Study in effect stated District expected between 15 and 18 or 19 evening events per year.

We do not conclude District's description of the Project in that regard was inaccurate or

misleading to the Board or the general public.

Furthermore, Taxpayers does not cite any case, statute, regulation, or other

authority persuading us that District was required to place a finite limit on the number of

evening events to be held each year were the Project to be completed.10 Nevertheless, if

the Project is completed and District thereafter proposes to increase the actual number of

evening events held to a number substantially greater than the 15-to-19 range, District

may be required to conduct an additional CEQA review to determine whether the

increased number of events may result in a significant effect on the environment.

C

Field lighting. Taxpayers asserts a fair argument exists whether the installation of

field lighting for Hoover's football stadium may have a significant effect on the aesthetics

of the neighborhood. Taxpayers argues the installation of two 100-foot standards and

10 Taxpayers likewise does not cite any case, statute, regulation, or other authority

persuading us that District was required to identify each type of use expected to be made

of Hoover's football stadium were the Project to be completed.

27

two 90-foot standards with a total of 60 luminaires (i.e., light fixtures) would result in

light trespassing onto neighboring residences, causing a significant increase in the

amount of light in the environment during evening events at Hoover's stadium. It also

argues the stadium lighting would degrade the existing visual character of the

neighborhood.

The Initial Study described the new field lighting that would be installed at

Hoover's football stadium, stating: "[T]wo 100 foot light standards on south side of

football field and two 90 foot light standards on north side of football field [would be

installed]. The field lighting would be focused and directed at the field area during

school events, including sporting events (i.e., football, soccer, track) that occur after

dusk. It is anticipated that field lighting will be dimmed at the conclusion of the event

and after all patrons have safely exited the facility (estimated at 9:00 p.m.).

Subsequently, the facility would be cleaned and the field lights will be extinguished

(estimated at 10:00 p.m.)." Appendix A to the Initial Study is a copy of the lighting

impact study conducted for District by T&B Planning Consultants (T&B) regarding the

potential impact of the Project's stadium lighting on the environment. T&B described the

proposed stadium lighting system, stating:

"Proposed artificial lighting improvements include installation of the

Musco Light-Structure Green™ sports lighting system at the football

field. . . . Two light standards would be constructed at the home side

of the field (southern portion of the site) and two light standards

would be constructed at the visitors' side of the field (northern edge

of the site), as depicted on Figure 3-3, Lighting Plan. The light

elements proposed for the home side of the field would consist of

two (2) 100-foot tall galvanized steel poles with each featuring 15

luminaires. The light elements proposed for the visitors' side of the

28

field would consist of two (2) 90-foot tall galvanized steel poles with

each featuring 15 luminaires. Combined, a total of 60 luminaires

would be provided on-site. Each luminaire would feature a 1500-

watt metal halide fixture (producing an average of 134,000 lumens),

a 14-inch external visor to reduce glare, and a reflective insert to

focus light onto the playing field and reduce spill light.

"According to manufacturer's specifications, the Musco Light-

Structure Green™ includes a light spill and glare control system that

is designed to minimize off-site impacts from the sports lighting

system. The reflector and external visor are designed so the majority

of the light is in the lower portion of the beam, and direct line of

[sight] to the lamp (source of glare) is minimized when viewed from

surrounding areas. Each fixture housing has reflective inserts which

direct, shift, and focus light onto the field and reduce spill and

glare."

T&B stated the Project would have an adverse lighting impact (i.e., significant effect on

the environment) if it would produce a substantial amount of light pollution, including

sky glow, light trespass or glare. It concluded the Project's sky glow and glare would

have a less than significant impact. Regarding light trespass, T&B reviewed the

standards adopted by three professional and/or industry organizations for limiting light

trespass onto adjacent residential properties in areas of medium ambient brightness that

include urban residential areas like those in which the Project is located.11 Based on its

review, T&B established a threshold of CEQA significance for light trespass for the

Project if illuminance exceeded 0.8 foot-candles during precurfew hours and 0.2 foot-

candles during postcurfew hours, as measured on horizontal and vertical planes at the

property line of any adjacent residence. T&B stated: "The potential for sleep disruption

11 Those organizations were the Institution of Lighting Engineers, Illuminating

Engineering Society of North America, and the Electric Power Research Institute.

29

is the critical component in determining the level of impact for light trespass." T&B's

analysis of the Project's light impact was based on a photometric analysis conducted by

Musco Lighting, the Project's lighting system designer.

Most importantly for purposes of this appeal, T&B concluded the vertical

illuminance caused by the Project would not significantly impact the residences located

west of Highland Avenue. It stated:

"[I]mplementation of the Project would result in the contribution of

approximately 0.26-1.46 vertical foot-candles at various off-site

locations, as calculated from adjacent residential property lines [west

of Highland Avenue]. [¶] However, it is important to note that the

calculations depicted on Figure 5-1 do not account for the

landscaping proposed as part of the Project, which would include

approximately 13 trees along the boundary with Highland

Avenue. . . . With maturity of landscaping, these trees would

therefore obstruct most line-of-[sight] views to the site, with

exception of several gaps measuring between 0 to 10 feet where tree

canopies would not overlap.

T&B noted that an area along Highland Avenue would be subjected to precurfew

illuminance ranging from 0.89 to 1.46 vertical foot-candles, but that on maturity of the

Project's proposed trees illuminance would not exceed 0.8 vertical foot-candles and

therefore would be less than significant. Furthermore, before maturity of the Project's

proposed trees, T&B stated:

"[I]t is unlikely that operation of the proposed lighting system would

result in significant adverse impacts related to light trespass. In

urbanized locations, like the Project site and surrounding areas, the

most common adverse effect of light trespass is disruption of sleep.

Although the [Project] would create spill light that would result in

light trespass on adjacent residential properties during pre-curfew

hours, lighting would be dimmed by 9:00 [p.m.] daily and

extinguished by 10:00 [p.m.] daily, and the nearby residential areas

are located in an area of medium ambient brightness and the small

30

increase in light trespass is considered a less than significant

impact."

Likewise, as to postcurfew impacts, T&B concluded the restriction on hours of operation

of the stadium lighting (i.e., dimming by 9:00 p.m. and extinguishing by 10:00 p.m.)

would avoid light trespass during sleeping hours and the "infrequent use" of the stadium

lighting (i.e., approximately 15 evening events per year) "would help minimize the

incidence of potential adverse light trespass impacts to nearby residences until the

proposed landscaping has reached maturity." T&B concluded the potential for light

trespass impacts would be less than significant both in the near-term before maturity of

the Project's landscaping and in the long-term after maturity of that landscaping.

Based on our independent review of the administrative record, we conclude there

is no substantial evidence in the record showing the Project's lighting elements may have

a significant effect on the environment. (Pub. Resources Code, § 21100; No Oil, Inc. v.

City of Los Angeles, supra, 13 Cal.3d at p. 75; Laurel Heights Improvement Assn. v.

Regents of University of California, supra, 6 Cal.4th at p. 1123.) Taxpayers implicitly

relies on two factors set forth in Appendix G to the Guidelines as showing the Project

may have a significant effect on aesthetics: (1) the Project would substantially degrade

the existing visual character or quality of the site and its surroundings; and/or (2) the

Project would create a new source of substantial light or glare that would adversely affect

day or nighttime views in the area. (Guidelines, append. G, § I, subds. (c) & (d).)

However, Taxpayers has not persuaded us there is substantial evidence to support a

31

finding that either or both of those factors shows the Project may have a significant effect

on the environment.

First, the lighting impact study concluded, as discussed above, the Project's

lighting elements would not have a significant impact on the environment, citing the

stadium lighting's limited hours of operation, limited number of evening events,

landscaping features, and limited number of residences affected by light trespass. Figure

5-1 of the study showed the level of vertical foot-candles caused by the Project's stadium

lighting at various points near residences along Highland Avenue and other neighborhood

streets. Only a small number of residences in the neighborhood would be impacted by

vertical foot-candle levels in excess of the established significance threshold of 0.8 foot-

candles. Our review of Figure 5-1 shows that, at most, seven residences on Highland

Avenue would be so impacted.12 The light trespass on those residences would range

from 0.89 vertical foot-candles to 1.46 vertical foot-candles. Although based solely on

the threshold of significance adopted by T&B (i.e., 0.8 foot candles) it could be argued

the stadium lighting may therefore have a significant impact on the neighborhood, we

conclude that, considering all the circumstances in this case, there is no substantial

evidence the lighting may have a significant impact on the neighborhood. The limited

12 Also, one residence on Monroe Avenue would be impacted by 0.82 vertical foot-

candles and possibly one residence beyond the northeast corner of the stadium would be

impacted by 0.89 vertical foot-candles. However, the de minimis nature and extent of

that light trespass, combined with the limited operating hours and limited number of

evening events, shows light trespass could not, as a matter of law, reach the level of

significance for purposes of CEQA in the circumstances of this case.

32

operating hours of the stadium lighting (i.e., lighting dimmed at 9:00 p.m. and

extinguished at 10:00 p.m.) and limited number of evening events (approximately 15 per

year), when considered with the small number of residences affected (about seven

residences), do not support a fair argument that the Project's stadium lighting may have a

significant effect on the environment.13 Considering the most common adverse effect of

light trespass apparently is disruption of sleep, there is no substantial evidence in the

record to support a finding that it is reasonably possible a substantial number of persons

living in the neighborhood around Hoover may be significantly deprived of sleep and

thereby significantly impacted by the stadium lighting. We conclude there is no

substantial evidence that the Project's stadium lighting may have a significant effect on

the environment by means of significant light trespass (or glare or sky glow). 14

Second, Taxpayers asserts the Project's stadium lighting may have a significant

effect on the environment because the lighting will have an "impact on the feel and

quality of the neighborhood." It notes Talmadge is a neighborhood of potentially historic

13 Furthermore, in the long-term any light trespass apparently will be further reduced

when the Project's landscaping (e.g., trees) matures. To the extent Taxpayers argues the

stadium lighting may have a significant effect on the environment because District has

not committed to limiting the number of evening events to 15 per year, we addressed that

issue above and concluded District's description of the Project in effect stated the stadium

lighting would be used from 15 to about 19 evening events per year. Any substantial

increase beyond that range may require future review under CEQA.

14 To the extent Taxpayers asserts there may be a significant effect on the

environment if the lights can merely be seen from the neighborhood, it does not cite any

authority supporting that assertion, and we are not persuaded the threshold for

significance is or should be set so low.

33

significance, with unique homes, narrow streets, and historic lamp posts. It asserts "[t]he

direct visual impact of very tall modern stadium lights is completely out of character with

[the] historic nature of Talmadge." However, based on our review of the whole record,

we conclude the addition of four tall lighting standards to an existing, albeit renovated,

stadium cannot reasonably be considered to have a substantial direct visual impact on the

surrounding neighborhood that would constitute a significant effect on the environment.

Contrary to Taxpayers's assertion, the testimony of a community member that "we

want to come home to peace and calm, not bright lights and noise" does not constitute

substantial evidence showing the lighting may have a significant effect on the

environment. "Under CEQA, the question is whether a project will affect the

environment of persons in general, not whether a project will affect particular persons."

(Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492.)

Furthermore, "[t]he possibility of significant adverse environmental impact is not raised

simply because of individualized complaints regarding the aesthetic merit of a project."

(Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th

357, 376.)

D

Historical resources. Taxpayers also asserts a fair argument exists whether the

Project would have a significant effect on historical resources in Hoover's neighborhood.

It argues the MND and Initial Study did not adequately describe the historical nature of

the neighborhood surrounding Hoover. It further argues District did not analyze whether

the Project would potentially impact the neighborhood's historical resources.

34

The Initial Study described the area surrounding the Project, stating in part: "The

[P]roject site is located in a built-out urban area and is surrounded by residential and

commercial uses." On the question whether the Project would cause a substantial adverse

change in the significance of a historical resource, the Initial Study stated:

"The [P]roject site is currently developed within an existing high

school campus in an urbanized area. The site is not listed on the

State of California's Office of Historic Preservation (SHPO) list for

San Diego County as required by [Guidelines] Section 15064.5

(SHPO, 2009). There are no historic structures occurring on-site.

Furthermore, no buildings associated with the school campus would

be demolished or altered as part of the [Project]. As the [P]roject

would replace or upgrade existing facilities on-site, it is not

anticipated to alter the historic context of the area. Therefore, no

impact is identified for this issue area."

District concluded the Project would have no impact on a historical resource.

Public Resources Code section 21084.1 provides:

"A project that may cause a substantial adverse change in the

significance of an historical resource is a project that may have a

significant effect on the environment. For purposes of this section,

an historical resource is a resource listed in, or determined to be

eligible for listing in, the California Register of Historical Resources.

Historical resources included in a local register of historical

resources . . . are presumed to be historically or culturally significant

for purposes of this section . . . . The fact that a resource is not listed

in, or determined to be eligible for listing in, the California Register

of Historical Resources [or] not included in a local register of

historical resources . . . shall not preclude a lead agency from

determining whether the resource may be an historical resource for

purposes of this section."

CEQA does not require formal listing of a resource in a national, state, or local register as

a prerequisite to "historical" status. (Architectural Heritage, supra, 122 Cal.App.4th at

p. 1114.) The Guidelines provide: "A project with an effect that may cause a substantial

35

adverse change in the significance of an historical resource is a project that may have a

significant effect on the environment. [¶] (1) Substantial adverse change in the

significance of an historical resource means physical demolition, destruction, relocation,

or alteration of the resource or its immediate surroundings such that the significance of an

historical resource would be materially impaired."15 (Guidelines, § 15064.5, subd. (b).)

District correctly determined, and Taxpayers apparently does not dispute, that

Hoover is not a historical resource itself. Rather, Taxpayers apparently argues there are

historical resources near Hoover that District failed to describe and analyze, and the

Project would substantially and adversely change the significance of those historical

resources. The Initial Study, as quoted above, described the area surrounding the Project

as "located in a built-out urban area and is surrounded by residential and commercial

uses." Taxpayers apparently does not dispute the truth of that description, but rather

argues District should have expanded that description to include a discussion of the

neighborhood's historic characteristics. Assuming arguendo District should have

included in the Initial Study a more complete description of the neighborhood

surrounding Hoover, we nevertheless are unpersuaded there is substantial evidence in the

record showing that neighborhood, or any element in it, is a historic resource within the

15 The Guidelines further provide: "The significance of an historical resource is

materially impaired when a project: [¶] . . . [d]emolishes or materially alters in an adverse

manner those physical characteristics of an historical resource" that convey its historical

significance and justify or account for its inclusion in, or eligibility for, the California

Register of Historical Resources, a local register of historical resources, or the California

Register of Historical Resources as determined by a lead agency for purposes of CEQA."

(Guidelines, § 15064.5, subd. (b)(2).)

36

meaning of CEQA. Although the administrative record is voluminous, Taxpayers cites

only a few pages that purportedly show there are historical resources in the neighborhood

surrounding Hoover.

First, Taxpayers cites a map that apparently is an excerpt from a 1996 report of the

Greater Mid-City Historic Survey Oversight Committee. That map contains the

description "Boundaries of the potential Talmadge Historic District," depicts an area

adjacent to Hoover, and shows numerous lots marked with dots. However, we do not

conclude from that excerpt that the potential historic district was ever, in fact, listed by

City, or determined by City to be eligible for listing in, its registry of historic districts.

The fact that an oversight committee apparently was proposing such a district does not

provide substantial evidence to support a conclusion that City actually made that

determination.

Second, Taxpayers cites a page in the record apparently consisting of a 2003

"draft" map created by City's planning department showing existing conditions in the

Kensington-Talmadge area. The draft map's legend and color-coding appear to show a

street immediately north of Hoover (presumably Monroe Avenue) that is designated as an

existing historic district.16 However, we are unable to conclude from that draft map that

the historic district reflected on it was ever, in fact, listed by City, or determined by City

to be eligible for listing, in its registry of historic districts. The fact City's planning

department created a "draft" map apparently reflecting an "existing" historic district does

16 Portions of that street are designated "Talmadge Lots" and "Talmadge Gates."

37

not provide substantial evidence to support a conclusion that City actually had made that

determination.

Finally, Taxpayers cites an excerpt from a "final" Mid-City Communities Plan

prepared by City's planning department. That excerpt makes a general reference to "the

Kensington & Talmadge Historic District." However, it does not show the location of

that district or otherwise provide any substantial evidence to show the area surrounding

Hoover was listed by City, or determined by City to be eligible for listing, in its registry

of historic districts. Taxpayers has not carried its burden on appeal to show there is

substantial evidence that the area surrounding Hoover is an historical resource within the

meaning of CEQA. (Pub. Resources Code, § 21084.1; Guidelines, § 15064.5, subd. (b).)

Nevertheless, assuming arguendo there is an historical resource near Hoover,

Taxpayers does not cite any substantial evidence showing that historical resource's

significance may be materially impaired, and thereby substantially and adversely

affected, by the Project. (Guidelines, § 15064.5, subd. (b).) Assuming Monroe Avenue

adjacent to the stadium is an historical district, there is no substantial evidence showing

its historical significance may be materially impaired by the addition of stadium field

lighting. Although Taxpayers asserts the Project's lighting structures will be seen from

the neighborhood during evening events and during daylight, it cannot be reasonably

inferred, based on the record in this case, that the lighting may materially impair

whatever historical significance Monroe Avenue or any other nearby historical resource

may have. Hoover's stadium (i.e., football field, track, and bleachers) apparently has

been in its current location for more than 30 years. If the Project were completed, the

38

stadium would remain, albeit renovated and with the addition of field lighting.

Taxpayers does not cite any evidence showing any special historical significance of the

adjacent Monroe Avenue or other neighborhood would be materially impaired by the

addition of field lighting. We cannot conclude the Project may materially impair the

historical significance of ornamental lampposts and gates in the neighborhood.17 Based

on our review of the record, there is no evidence that the Project, if completed, would

"[d]emolish[] or materially alter[] in an adverse manner those physical characteristics of

an historical resource" that convey its historical significance and justify or account for its

inclusion in, or eligibility for, the California Register of Historical Resources, a local

register of historical resources, or the California Register of Historical Resources as

determined by a lead agency for purposes of CEQA. (Guidelines, § 15064.5, subd.

(b)(2).) We conclude there is no substantial evidence showing the Project may materially

impair, or substantially and adversely affect, any historical resource. (Guidelines,

§ 15064.5, subd. (b).)

E

Traffic and parking. Taxpayers asserts a fair argument exists whether the

installation of the Project's proposed field lighting for Hoover's football stadium may

17 The evidence showing persons may have climbed onto gates during prior stadium

events does not show the addition of field lighting may substantially impair any historical

significance of those gates. Similarly, evidence showing school contractors may have

damaged those gates during prior projects does not show the Project, including the

addition of field lighting, may substantially impair any historical significance of those

gates.

39

have a significant effect on the area's traffic and parking. Taxpayers also asserts District

abused its discretion in adopting the MND because it did not adequately consider event

attendance, traffic and parking issues.

Initial Study. A traffic impact study conducted by LOS Engineering, Inc. (LOS)

regarding the Project's potential impact on traffic and parking is set forth in Appendix C

to the Initial Study. LOS based its traffic and parking analysis on a calculation of the

average attendance at evening football games, which would begin at about 6:30 p.m.

Based on attendance data from five District high schools other than Hoover, LOS

concluded attendance at Hoover evening football games would equal 68 percent of its

student population (2,123), or 1,444. It assumed 82.5 percent of attendees (1,191) would

arrive by car and each car would carry three attendees. Therefore, an average of 397 cars

would travel to and from Hoover for football games. Under the Project, the number of

on-site parking spaces would increase from 167 spaces to 223 spaces, an increase of 56

spaces. Because there will be only 223 on-site parking spaces for those 397 cars, the

Project will create a parking shortage of 174 spaces. However, LOS concluded the

Project would not have a significant impact on parking because: (1) the number of on-site

parking spaces would increase by 56 spaces; (2) only 15 evening events per year would

be held; and (3) noncompliance with City's parking ordinance (apparently because of a

parking deficit exceeding 10 percent of the stadium's capacity) did not necessarily

constitute a significant effect on the environment. Regarding the Project's impact on

traffic, LOS examined existing vehicle traffic on Friday, April 24, 2009, at six

intersections along El Cajon Boulevard (only two of which were adjacent to Hoover)

40

between the hours of 5:30 p.m. and 6:30 p.m. The intersection with Highland Avenue

leading to Hoover's stadium operated at a level of service of "C" based on City's criteria

regarding the average number of seconds of delay. On completion of the Project, LOS

calculated that an additional 286 inbound vehicles would pass through that intersection

before Hoover football games, resulting in a degradation of the level of service from "C"

to "D" based on an increase in the average delay from 20.5 seconds to 33.9 seconds.

Because the level of service did not degrade below level "D" at that intersection (and the

five other intersections), LOS concluded the Project did not significantly impact traffic

per City's established thresholds for significance.

Public comments. Following District's notice of intent to adopt the MND, it

received extensive oral, written and physical evidence (e.g., photographs) from residents

of Hoover's neighborhood and others regarding the environmental effects of the Project,

including its anticipated impact on traffic and parking in the area. District received

comments asserting the Project would cause substantial parking and traffic problems in

the neighborhood. For example, a letter from two residents stated in part:

"A baseline of parking has not been established at 7:00 p.m. on a

Friday night (the start time for a typical evening football game) to

determine how many vehicles already occupy the street parking

available in the surrounding streets; thereby calculating how the

overage from a night event will significantly impact the area.

"There is no reference to the available off-site (street) parking in the

[traffic impact study]. It only references the parking that is deficient

onsite.

"The area is landlocked by canyons. This leaves no other option for

residents and event attendees alike, when parking is not available, to

41

park completely out of the area and/or illegally parking their

vehicle[s] (which is usually a common choice). [¶] . . . [¶]

"Due to the number and size of event attendee vehicles parked along

our narrow streets (streets which are less than 30 feet across)[,]

visibility from cross streets is significantly impacted which promotes

an unsafe driving situation. Many of these parked cars are illegally

blocking driveways, crosswalks, and access to fire hydrants. Due to

the illegal parking on the narrow streets, residents do not have the

space required to maneuver their vehicles from the street to their

driveways/garages."

District's response. In response to the public comments it received, District stated

the Guidelines did not require it to perform a CEQA analysis of the Project's impact on

parking. Furthermore, District stated that because the capacity of the stadium's bleachers

would be reduced by 1,665 seats, it did not expect the Project to cause any expansion of

event attendance. Regarding traffic, District stated it would implement traffic control and

crowd control measures during evening events to direct traffic, prevent loitering in the

neighborhood, and encourage parking on the Hoover campus.

Attendance. Taxpayers argues District abused its discretion by not establishing a

baseline attendance number for Hoover football games and by assuming 1,444 persons

would attend football games on completion of the Project. An initial study under CEQA

must describe the physical environmental conditions in the vicinity of a proposed project

as they exist at that time, which environmental setting will normally constitute the

baseline physical conditions by which a lead agency will determine whether a project

may have a significant impact on the environment. (Guidelines, §§ 15125, subd. (a),

15126.2, subd. (a); Communities, supra, 48 Cal.4th at p. 320 & fn. 5.) Without a

comparison of existing, baseline physical conditions to the conditions expected to be

42

produced by a project, an initial study or EIR "will not inform decision makers and the

public of the project's significant environmental impacts, as CEQA mandates."

(Communities, at p. 328.) Nevertheless, neither CEQA nor the Guidelines "mandates a

uniform, inflexible rule for determination of the existing conditions baseline. Rather, an

agency enjoys the discretion to decide, in the first instance, exactly how the existing

physical conditions without the project can most realistically be measured, subject to

review . . . for support by substantial evidence." (Ibid.)

The Initial Study, including the traffic impact study, did not include any

calculation or other description of existing attendance at Hoover football games. To the

extent District asserts that calculation was not required by CEQA because Hoover's

football games currently are held in the afternoon, the record appears to reflect a virtual

consensus among Hoover staff, parents, and alumni, neighborhood residents, and others

that the addition of stadium lighting would allow more persons (e.g., parents) to attend

football games during evening hours when most persons are not working and thus

increase attendance at Hoover football games.18 Accordingly, District should have

considered such afternoon game attendance in calculating a baseline attendance figure so

18 Ron Lardizabal, Hoover's athletic director, described at the January 11, 2011,

Board meeting how adult attendance at Hoover football games was greater at three

evening football games held in 2006, 2008, and 2010 (apparently using temporary field

lighting) than at games held in the afternoon.

43

it could compare that baseline to expected attendance at evening football games on

completion of the Project.19

In any event, District's calculation of the expected attendance at Hoover's evening

football games on completion of the Project was questionable. Rather than using actual

attendance data for Hoover's afternoon football games and increasing that number to

account for additional persons who would attend evening games, LOS, on District's

behalf, based its calculation on the average attendance at football games at five of

District's 16 high schools (excluding Hoover) without providing any explanation

regarding why those schools were selected and/or were comparable to Hoover. Those

five high schools were La Jolla, Lincoln, Madison, Mira Mesa, and San Diego high

schools. Even were we to assume those high schools were selected because they have

stadium lighting and hold evening football games, LOS did not explain why attendance

data from the three other District high schools that also have stadium lighting (i.e.,

Patrick Henry, Scripps Ranch, and Serra high schools) were excluded from its study.20

In the circumstances of this case, absent a reasonable explanation for exclusion, it would

appear to be a better practice to consider attendance data from all eight District schools

19 To the extent LOS implicitly applied a baseline attendance number of zero

because Hoover does not currently hold evening football games, we nevertheless believe

Hoover's afternoon game attendance data has an important role in calculating its expected

evening game attendance on completion of the Project.

20 A June 17, 2009, memorandum from Dave Davis, District's CEQA coordinator,

set forth an informational matrix listing those District high schools that have football

field lighting and those that do not.

44

that hold evening football games in calculating the expected attendance at Hoover

evening football games were the Project completed.

For each of the five high schools, LOS calculated a ratio of its average attendance

at evening football games to its number of enrolled students. However, LOS does not

explain how that ratio is helpful in calculating the expected attendance at Hoover's

evening football games. Nevertheless, assuming there is some general correlation

between enrollment at high schools and average attendance at football games, we likely

would defer to District in its selection of a methodology for calculating the expected

attendance at Hoover evening football games. (Cf. Communities, supra, 48 Cal.4th at p.

328 [lead agencies have discretion to choose methodology for determining existing

conditions baseline if supported by substantial evidence].) Based on its data, LOS found

there was a range of 125 percent (at Lincoln High School) to 13 percent (at San Diego

High School) at those five high schools. For those five high schools, the average

percentage of attendance at football games to student enrollment was 68 percent.21

Applying that percentage to Hoover's student enrollment of 2,123, LOS calculated the

attendance at Hoover's evening football games on completion of the Project would be

1,444. However, LOS did not compare that number to actual attendance data from

21 As Taxpayers argues, absent a reasonable explanation showing Hoover's football

game circumstances are similar to San Diego High School's, a statistician might exclude

that school's low 13 percent attendance rate as aberrational, thereby increasing the

average percentage for the other four high schools (or seven if the three excluded high

schools were included) above 68 percent (e.g., to 82 percent). In that event, LOS's

methodology would result in a greater expected attendance at Hoover evening football

games (e.g., 82 percent of 2,123 enrolled students, or 1,740).

45

Hoover's past afternoon football games to verify whether that number of attendees (i.e.,

1,444) appeared realistic considering the general consensus that attendance would

increase at Hoover football games were they held in the evening with field lighting.

Absent that check based on actual Hoover attendance data, it may be questioned whether

LOS's methodology, as applied, resulted in an abuse of discretion and/or was not

supported by substantial evidence. Without a reasonable determination of the expected

attendance at Hoover evening football games on completion of the Project, District may

be unable to adequately compare the baseline attendance to expected attendance in

determining whether there is a fair argument the Project may have a significant impact on

traffic and/or parking.22 (Guidelines, §§ 15125, subd. (a), 15126.2, subd. (a);

Communities, at p. 320 & fn. 5.)

Parking. Taxpayers asserts that District did not conduct an adequate study of the

Project's impact on parking. The Initial Study stated the Project will create a parking

shortage of 174 spaces. However, based on our review of LOS's study, it appears LOS

did not make any attempt to ascertain the total number of off-site, street parking spaces in

the immediate area, nor did LOS make any attempt to ascertain the number of available

off-site, street parking spaces during the Friday evening time period of 5:30 p.m. to 6:30

22 We further believe District's study of the Project's impact on traffic and parking

should consider both the average expected attendance at Hoover evening football games

and the expected peak attendance at evening football games (e.g., homecoming games).

However, contrary to Taxpayers's assertion, District's attendance calculation was not

required to be equal to the stadium's full capacity on completion of the Project (i.e.,

2,796), but rather should be based on the expected attendance at football games on

completion of the Project.

46

p.m. that it selected for determining traffic levels. Therefore, LOS had no basis on which

to conclude the parking shortage of 174 spaces would be filled by available off-site, street

parking spaces in the immediate area. Contrary to LOS's conclusion, the fact the Project

would add 56 on-site spaces did not show the Project could not have a significant impact

on parking in the neighborhood based on the apparent need of 174 off-site, street parking

spaces.23

Contrary to District's assertion, CEQA does not provide that a project's direct

impact on parking cannot constitute a significant impact on the physical environment. In

support of its assertion, District cites language from San Franciscans Upholding the

Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656

(SFUDP), which states:

"[T]here is no statutory or case authority requiring an EIR to identify

specific measures to provide additional parking spaces in order to

meet an anticipated shortfall in parking availability. The social

inconvenience of having to hunt for scarce parking spaces is not an

environmental impact; the secondary effect of scarce parking on

traffic and air quality is. Under CEQA, a project's social impacts

need not be treated as significant impacts on the environment. An

EIR need only address the secondary physical impacts that could be

triggered by a social impact. (Guidelines, § 15131, subd. (a).)

23 Furthermore, had an adequate expected attendance determination been made, it is

likely a much greater number of off-site, street parking spaces would be required for

Hoover evening football games. For example, if expected attendance were 1,740, using

LOS's methodology about 478 vehicle trips would be made in and out of the area for

Hoover football games and, after subtracting the number of on-site spaces (223), there

would be a parking shortage of 255 spaces instead of the 174 spaces calculated by LOS in

its traffic and parking study, resulting in a much greater impact on parking in the area.

47

"Thus, the EIR correctly concluded that '[p]arking shortfalls relative

to demand are not considered significant environmental impacts in

the urban context of San Francisco. Parking deficits are an

inconvenience to drivers, but not a significant physical impact on the

environment.' (Italics added.) The EIR then fulfilled its CEQA-

mandated purpose by identifying ways in which the secondary

environmental impacts resulting from the projected parking deficits

could be mitigated, in keeping with the specific environmental

strictures imposed by the City's own transit-first policy." (SFUDP,

at p. 697.)

District argues that under SFUDP the parking shortage created by the Project is merely a

"social inconvenience," and cannot constitute a significant physical impact on the

environment. However, as Taxpayers argues, that language from SFUDP is likely dicta

because the court alternatively concluded there was substantial evidence to support the

EIR's conclusion that proposed measures to mitigate the parking shortage were adequate.

(Id. at pp. 696-698 & fn. 24.) Furthermore, SFUDP's language applied only to the

special circumstances in that case in which there was a strong public policy, reflected in a

city ordinance, against providing private off-street parking to encourage the use of public

transit.24 (SFUDP, supra, 102 Cal.App.4th at pp. 696-698 & fn. 24.) In any event, we

24 SFUDP stated: "Significantly, the City Planning Code itself does not require new

commercial projects in the downtown commercial retail district to provide additional off-

street parking. Thus, Planning Code section 161 states in pertinent part as follows: '(c) In

recognition of the compact and congested nature of the downtown area . . . , the

accessibility of this area by public transit, and programs for provision of public parking

facilities on an organized basis at specific locations, no off-street parking shall be

required for any use, other than dwellings where a requirement is specified, in any C-3

. . . Commercial Districts.' " (SFUPD, supra, 102 Cal.App.4th at p. 698, fn. 24.) Unlike

the circumstances in SFUPD, the Project in this case is not located in a downtown area,

and there is no City ordinance absolving a project from providing off-street parking. On

the contrary, City apparently has an ordinance generally requiring projects to provide off-

street parking as LOS noted in its traffic impact study.

48

disagree with the broad statement made in SFUPD that a parking shortage is merely a

social inconvenience and can never constitute a primary physical impact on the

environment. As Taxpayers notes, cars and other vehicles are physical objects that

occupy space when driven and when parked. Therefore, whenever vehicles are driven or

parked, they naturally must have some impact on the physical environment. The fact that

a vehicle's impact may be only temporary (e.g., only so long as the vehicle remains

parked) does not preclude it from having a physical impact on the environment around it.

Therefore, as a general rule, we believe CEQA considers a project's impact on parking of

vehicles to be a physical impact that could constitute a significant effect on the

environment.

Although the Guidelines apparently do not specifically list parking as one of the

potential impacts that must be addressed in an initial study or EIR, the Guidelines do not

set forth an exclusive list of all potential impacts that must be addressed.25 Rather, they

provide a sample list of those impacts of projects that are most common and should be

addressed by lead agencies. (See, e.g., Guidelines, append. G.) The Guidelines expressly

advise: "Substantial evidence of potential impacts that are not listed on this form must

also be considered." (Guidelines, append. G.) Furthermore, the Guidelines include a

25 In fact, a former version of the Guidelines apparently expressly listed parking as a

potential significant environmental impact. (Santa Monica Chamber of Commerce v.

City of Santa Monica (2002) 101 Cal.App.4th 786, 798 ["Chamber of Commerce urges

that an 'adverse parking effect' is itself an environmental impact, citing Guidelines,

appendix G, [former section XVI, subdivision (f)] (which is simply a sample question

that asks: 'Would the project result in inadequate parking capacity?')"].)

49

section on transportation and traffic, which issues presumably include parking issues

even though parking is not expressly listed. (Guidelines, append. G, § XVI.) We reject

SFUDP's language, quoted above, and are unpersuaded by its reasoning. Therefore, we

decline to apply it in the circumstances of this case.26

Furthermore, regardless of whether parking is considered a primary or secondary

impact of a project, a project's impact on parking generally should be studied for any

potential impact on the environment. "CEQA requires a governmental agency [to]

prepare an environmental impact report (EIR) whenever it considers approval of a

proposed project that 'may have a significant effect on the environment.' ([Pub.

Resources Code,] § 21100, italics added.)" (Quail Botanical Gardens Foundation, Inc. v.

City of Encinitas, supra, 29 Cal.App.4th at p. 1601.) CEQA does not limit consideration

of a project's effects on the environment to only those that are "direct" or "primary." The

Guidelines define "[s]ignificant effect on the environment" as "a substantial, or

potentially substantial, adverse change in any of the physical conditions within the area

26 Apparently other courts have not adopted SFUPD's language. Our research has

not found any published California case adopting that language and applying it to exclude

parking as a potential environmental effect under CEQA. We also note that it is not

uncommon for initial studies and EIR's to include sections analyzing the potential

impacts of projects on traffic and parking, reflecting a presumption that the lack of

sufficient parking can constitute a significant impact on the environment. (See, e.g.,

Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47

Cal.3d 376, 418 [EIR's parking mitigation measures were adequate]; City of Long Beach

v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 916-918 [substantial

evidence supported EIR's finding that project would not have a significant impact on

parking]; Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1019-

1022, 1029-1030 [EIR's parking mitigation measures were adequate].)

50

affected by the project including land, air, water, minerals, flora, fauna, ambient noise,

and objects of historic or aesthetic significance. An economic or social change by itself

shall not be considered a significant effect on the environment. A social or economic

change related to a physical change may be considered in determining whether the

physical change is significant." (Guidelines, § 15382, italics added.) If a project causes a

direct or indirect adverse change in a physical condition in an area, any social impact on

humans related to that physical change may be considered by a lead agency in

determining whether the physical change is "significant" under CEQA. (Guidelines,

§§ 15360 [significant effects may be either direct or indirect], 15064, subd. (e) ["If the

physical change causes adverse economic or social effects on people, those adverse

effects may be used as a factor in determining whether the physical change is

significant."]; see also Pub. Resources Code, § 21065 [defining a "project" as an activity

that may cause "either a direct physical change in the environment, or a reasonably

foreseeable indirect physical change in the environment"].) The Guidelines define the

"environment" as "the physical conditions which exist within the area which will be

affected by a proposed project . . . [and] includes both natural and man-made conditions."

(Guidelines, § 15360; see Pub. Resources Code, § 21060.5.)

Vehicles, whether driven or parked, in effect constitute man-made conditions and

therefore may constitute physical conditions in an area that may be affected by a

proposed project, thereby requiring a lead agency to study whether a project's impact on

parking may cause a significant effect on parking and thus the environment.

Furthermore, to the extent the lack of parking affects humans, that factor may be

51

considered in determining whether the project's effect on parking is significant under

CEQA. (Cf. Guidelines, § 15064, subd. (e) [overcrowding of a public facility that causes

an adverse effect on people may be regarded as a significant effect].)

Based on our review of the record in this case, District did not properly study the

question of whether the Project may have a significant effect on parking in the area.

Initially, it did not properly establish a baseline attendance number to which it could

compare the expected attendance on completion of the Project, which comparison would

ultimately allow it to consider the nature and scope of the Project's adverse change on

parking in the area. The record includes extensive evidence (e.g., letters and

photographs) from residents in the area showing the Project may have an adverse effect

on parking. The personal observations and opinions of local residents on the issue of

parking in the area may constitute substantial evidence that a project may have a

significant impact on parking and thus the environment. (Cf. Mejia, supra, 130

Cal.App.4th at p. 339; Architectural Heritage, supra, 122 Cal.App.4th at pp. 1117-1118;

Arviv Enterprises, Inc. v. South Valley Area Planning Com. (2002) 101 Cal.App.4th

1333, 1347.)

Based on our review of the record, we conclude there is substantial evidence to

support a fair argument that the Project may have a significant impact on parking and

thus the environment. In addition to the comment letter quoted above, a Monroe Avenue

resident wrote a letter expressing his opposition to Hoover's stadium lighting and night

football games because, in part, "[s]chool parking is inadequate and so spill over into the

bedroom community behind the school is planned for the school to have a major influx of

52

cars and people" and "[s]treet parking in all the closed canyon streets as well as Monroe

Ave & Max Drive behind the school is filled during daylight games and will impair the

bedroom community in evening hours in ways of preventing parking for people that live

in the area coming home from work."27 Many other residents wrote letters expressing

their concerns that the Project would adversely affect the availability of street parking in

the area. Contrary to District's assertion, the "limited" number of evening events at

Hoover's stadium on completion of the Project (i.e., 15 to 19 evening events per year)

will not necessarily reduce those parking problems below a level of significance.28

27 To the extent District asserts any parking problems on neighborhood streets (e.g.,

Highland Avenue and Monroe Avenue) will be avoided by restricting access to the

stadium and allowing access only from El Cajon Boulevard, its supporting citation does

not show the Project will so restrict access. Also, although the Initial Study noted

"[a]ccess to the football field would only be available from the internal portion of the

school campus through the eastern portion of the football field at the new athletic services

building," it is unclear whether that statement means that all current gates to and from

Highland Avenue and/or Monroe Avenue would be closed or whether those gates would

remain open but football game attendees would be required to enter the stadium or

football field through one internal gate on the east side of the field. The record contains a

January 2009 document presumably prepared by District staff indicating that Hoover

plans to have separate home and visitor entrance gates for the stadium. That document

tends to refute District's apparent assertion on appeal that there will be only one internal

gate that could be accessed only from El Cajon Boulevard on the south side of the

Hoover campus. Nevertheless, to the extent attendees are required to enter only from El

Cajon Boulevard, the traffic and parking issues should be addressed considering that

restriction.

28 We acknowledge that, on its face, there appears to be an inconsistency between

this statement and our conclusion above that the limited number of events is one factor

showing the Project's lighting impact would not be significant. Because we considered

other factors along with the limited number of evening events in concluding the Project's

lighting would not have a significant effect on the environment, the number of events was

only one factor that weighed in favor of that conclusion. Furthermore, the Project's

impact on parking and lighting appears to be substantially different, both qualitatively

53

Furthermore, because District did not have sufficient information relating to the Project's

impact on parking and therefore could not adequately consider the potential significance

of the Project's impact on parking, District abused its discretion as a decision maker

under CEQA. (Pub. Resources Code, § 21168.5 [agency abuses its discretion under

CEQA if it does not proceed in a manner required by law]; Sunnyvale West

Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351,

1385-1388; Sierra Club, supra, 6 Cal.App.4th at p. 1317.) Because there is substantial

evidence to support a fair argument that the Project may have a significant effect on

parking, an EIR is required for the Project. (Mejia, supra, 130 Cal.App.4th at p. 342.)

The trial court erred by concluding otherwise.

Traffic. We further conclude there is substantial evidence to support a fair

argument that the Project may have a significant effect on traffic in the area. Many of the

residents' comment letters referred to the significant traffic problems they observed

during past events at the stadium and complained their neighborhood's narrow streets

became very congested during stadium events. Residents described vehicles crossing

over the center lines of streets into oncoming traffic, vehicles striking and breaking side

mirrors of parked cars, and dangerously reduced visibility at street intersections because

of parked vehicles. Based on the general consensus that evening football games on

completion of the Project will increase attendance and thus the number of vehicles, any

and quantitatively. The record shows a much greater number of area residents likely will

be adversely affected by the parking shortage caused by the Project than will be adversely

affected by the Project's lighting.

54

traffic problems experienced in the past logically will only be exacerbated if the Project is

completed and evening football games are held. Furthermore, as discussed above,

District's lack of sufficient attendance data precluded it from adequately addressing

traffic problems (as well as parking problems) that may be caused by the Project. Had

District obtained sufficient data on which to make a proper estimate of expected

attendees, it may very well have determined that the number of vehicles expected to

travel in and out of the Hoover neighborhood during evening football games will be

much greater than the 397 vehicles LOS calculated in its traffic impact study. Finally,

because District did not have sufficient information relating to the Project's impact on

traffic and therefore could not adequately consider the potential significance of the

Project's impact on traffic, District abused its discretion as a decision maker under

CEQA.29 (Pub. Resources Code, § 21168.5 [agency abuses its discretion under CEQA if

it does not proceed in a manner required by law]; Sunnyvale West Neighborhood Assn. v.

City of Sunnyvale City Council, supra, 190 Cal.App.4th at pp. 1385-1388.) Because

there is substantial evidence to support a fair argument that the Project may have a

significant effect on traffic (as well as on parking, as discussed above), an EIR is required

29 LOS's traffic impact study did not appear to consider any traffic congestion, and

the resulting dangers, on the neighborhood's narrow streets and intersections, particularly

considering the many parked cars, were the Project completed. Rather, LOS appeared to

consider only the actual number of vehicles at certain intersections along El Cajon

Boulevard (e.g., vehicles turning from El Cajon Boulevard onto Highland Avenue),

which arguably is an inadequate analysis of traffic impacts potentially caused by the

Project.

55

for the Project. (Mejia, supra, 130 Cal.App.4th at p. 342.) The trial court erred by

concluding otherwise.30

F

Zoning. Taxpayers asserts District wrongly claimed in the Initial Study that the

Project was exempt from City's zoning and land use laws and therefore no discussion or

consideration of the Project's inconsistency with those laws was required. As noted

above, the Board did not act to exempt the Project from City's zoning and land use laws

until May 10, 2011. Therefore, the Initial Study's claim on January 11, 2011, that the

Project was exempt from City's zoning and land use laws was not correct. However,

because the Board subsequently acted to exempt the Project and because we reverse and

remand this matter for preparation of an EIR for the Project, this issue is moot and we

need not address it further.

G

Because there is substantial evidence to support a fair argument that the Project

may have a significant effect on traffic and parking, the trial court erred by concluding

District properly adopted the MND and Initial Study and by dismissing Taxpayers's

second cause of action for violation of CEQA.

30 Because we reverse the trial court's dismissal of the second cause of action based

on substantial evidence that the Project may have a significant effect on traffic and

parking, we need not address Taxpayers's additional contention that the Project's

cumulative impacts are significant.

56

III

Government Code Section 53094 Exemption

Taxpayers contends the trial court erred by dismissing its third and fourth causes

of action because District's resolution pursuant to Government Code section 53094

exempting Hoover and other high schools from City's zoning and land use laws is invalid.

It argues inadequate notice of that action was given, the exemption of classroom and

nonclassroom facilities is overbroad, and that exemption action is a project requiring

compliance with CEQA.

A

Taxpayers's first amended complaint alleged causes of action for District's

violation of the City's zoning and land use laws (third cause of action) and for District's

violation of Government Code section 53094 by exempting the Hoover Project and

certain other high school projects from City's zoning and land use laws (fourth cause of

action). Taxpayers argued it should prevail on its third cause of action because the Board

did not adopt a resolution to exempt the challenged high school projects from zoning and

other land use laws until May 10, 2011, after Taxpayers filed the instant action on

February 9, 2011. Taxpayers also argued Hoover's new stadium lighting was part of

nonclassroom facilities that cannot be exempted from zoning and other land use laws

under Government Code section 53094. In its fourth cause of action, Taxpayers argued

reasonable notice was not given to affected property owners of the Board's hearing on the

resolution to exempt District from City's zoning and other land use laws. It also argued

District improperly exempted whole school sites under Government Code section 53094.

57

Finally, it argued District's Government Code section 53094 exemption action was a

project within the meaning of CEQA, thereby triggering District's duty to conduct a

proper CEQA review before taking that action.

District refuted Taxpayers's arguments and argued the third and fourth causes of

action should be dismissed. After reviewing the parties' papers and hearing arguments of

counsel, the trial court rejected Taxpayers's arguments and dismissed the third and fourth

causes of action.

B

In construing statutory language, we attempt to ascertain and effectuate the

Legislature's intent. (People v. Casteneda (2000) 23 Cal.4th 743, 746-747.) "We begin

by examining the words of the [statute]; if the statutory language is not ambiguous, then

we presume the Legislature meant what it said, and the plain meaning of the language

governs. [Citations.] If, however, the statutory language lacks clarity, we may resort to

extrinsic sources, including the ostensible objects to be achieved and the legislative

history. [Citation.] In such situations, we strive to select the construction that comports

most closely with the Legislature's apparent intent, with a view to promoting rather than

defeating the statute['s] general purposes. [Citation.] We will avoid any interpretation

that would lead to absurd consequences." (People v. Walker (2002) 29 Cal.4th 577, 581.)

On appeal, we review de novo, or independently, the question of law regarding the proper

interpretation of a statute. (Lazar v. Hertz Corp., supra, 69 Cal.App.4th at p. 1502.)

C

Government Code section 53094 provides in pertinent part:

58

"(b) [T]he governing board of a school district, that has complied

with [certain statutory prerequisites not relevant in this case], by a

vote of two-thirds of its members, may render a city or county

zoning ordinance inapplicable to a proposed use of a property by

the school district. The governing board of the school district may

not take this action when the proposed use of the property by the

school district is for nonclassroom facilities, including, but not

limited to, warehouses, administrative buildings, and automotive

storage and repair buildings.

"(c) The governing board of the school district shall, within 10 days,

notify the city or county concerned of any action taken pursuant to

subdivision (b). . . ." (Italics added.)

After discussing the legislative history of Government Code section 53094 and its

amendments, one court concluded:

"[T]he amendments to [Government Code] section 53094 do suggest

a legislative conclusion that the relationship between school boards

and their 'nonclassroom facilities' is not significantly different from

the relationship between other state agencies and their property,

which, in fact, could also be characterized as 'nonclassroom

facilities,' and therefore, state educational policy does not reasonably

or logically justify continued permission for school boards to exempt

their 'nonclassroom facilities' from local control. As to what

'nonclassroom facilities' are, the legislative genealogy of

[Government Code] section 53094 further suggests that

'nonclassroom facilities' are those that are not by their nature so

directly or sufficiently related to a school board's unique function as

to distinguish it from any other local agency.

"The statute itself confirms and helps clarify this suggestion by

enumerating instructive examples of 'nonclassroom facilities.' The

statute lists 'warehouses, administrative buildings, [and] automotive

storage and repair buildings[.]' These facilities have nothing directly

to do with classroom activities. Rather, they are devoted completely

to ancillary, noninstructional functions. Thus, we perceive in

[Government Code] section 53094 an intention to distinguish

between instructional and support facilities. Accordingly, we

consider it reasonable and consistent with the legislative history and

purpose of [Government Code] section 53094 to interpret

'nonclassroom facilities' to mean those not directly used for or

59

related to student instruction." (City of Santa Cruz v. Santa Cruz

City School Bd. of Education (1989) 210 Cal.App.3d 1, 7 (Santa

Cruz).)

D

Taxpayers initially asserts the trial court erred by dismissing its third and fourth

causes of action because District did not give adjacent property owners reasonable notice

and an opportunity to be heard on the Board's proposed action to exempt District's 12

high school projects from City's zoning and land use laws. Taxpayers argues the four

days' notice provided by District on May 6, 2011, by posting the Board's agenda on its

website and at District's office was inadequate notice. Taxpayers argues the Board's

action exempting the 12 high school projects from City's zoning and land use laws

constituted a quasi-adjudicative action, triggering greater notice requirements.

However, none of the cases cited by Taxpayers persuade us the Board's exemption

action required any greater notice than required for any general business action. In Horn

v. County of Ventura (1979) 24 Cal.3d 605, cited by Taxpayers, the court stated: "Due

process principles require reasonable notice and opportunity to be heard before

governmental deprivation of a significant property interest. [Citations.] [¶] It is equally

well settled, however, that only those governmental decisions which are adjudicative in

nature are subject to procedural due process principles. Legislative action is not burdened

by such requirements." (Id. at p. 612.) Horn further stated: "Subdivision approvals, like

variances and conditional use permits, involve the application of general standards to

specific parcels of real property. Such governmental conduct, affecting the relatively

few, is 'determined by facts peculiar to the individual case' and is 'adjudicatory' in

60

nature." (Id. at p. 614.) Accordingly, Horn concluded: "[W]henever approval of a

tentative subdivision map will constitute a substantial or significant deprivation of the

property rights of other landowners, the affected persons are entitled to a reasonable

notice and an opportunity to be heard before the approval occurs." (Id. at p. 616.) We

conclude Horn is factually inapposite to this case and does not persuade us Taxpayers or

its members were entitled to reasonable notice and an opportunity to be heard under due

process standards.

Assuming arguendo the Board's proposed action to exempt Hoover and the other

11 high schools from City's zoning and land use laws was, as Taxpayers argues, quasi-

adjudicative in nature, the record in this case does not show, and Taxpayers's first

amended complaint did not allege, the Board's proposed action would deprive Taxpayers

or its members of any "significant" property interest. Taxpayers alleged Hoover's

proposed new stadium lighting would exceed City's 30-foot limit for structures for the

applicable residential zone. However, we cannot conclude Taxpayers or any of its

members residing near Hoover would suffer a significant deprivation of a property

interest were the new stadium lights installed. Taxpayers has not cited any evidence in

the record that would support a reasonable inference the new stadium lighting would so

substantially affect the use of neighboring property that it could constitute a significant

deprivation of a property interest under constitutional due process standards. On the

contrary, the appearance of tall light standards, along with occasional evening events

involving some light trespass and additional traffic, could not, as a matter of law, result in

a significant deprivation of a property interest in the circumstances of this case. Horn

61

does not persuade us District was required to provide neighboring property owners with

reasonable notice and an opportunity to be heard on the Board's proposed exemption

action.

Neither Scott v. City of Indian Wells (1972) 6 Cal.3d 541 nor Topanga Assn. for a

Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, cited by Taxpayers,

are apposite to this case or persuade us to reach a contrary conclusion. In Scott, the court

concluded the City of Indian Wells was required to give notice to any nonresident owners

of property just outside city limits of a proposed grant of a conditional use permit for

construction of an adjacent large planned development within city limits. (Scott, at pp.

544, 548-549.) The court reasoned: "Certainly it is clear that the development of a parcel

on the city's edge will substantially affect the value and usability of an adjacent parcel on

the other side of the municipal line." (Id. at p. 548.) In Topanga, the court reversed a

county's grant of a zoning variance that allowed the development of a mobile home park

on 28 acres, concluding, in part, that the zoning variance was a quasi-judicial,

administrative action that required supporting evidence and findings. (Topanga, at pp.

509-510, 516-517.) None of Taxpayers's cited cases support its argument that "surely an

action to exempt one or more aspects of a school's 'classroom facilities' from zoning

ordinances cannot be so minor as to dispense with notice and due process to adjacent land

owners." We conclude Taxpayers has not carried its burden on appeal to persuade us

District was required to provide it and its members with reasonable notice and an

62

opportunity to be heard before the Board adopted the resolution exempting the projects at

Hoover and 11 other high schools from City's zoning and land use laws.31

E

Taxpayers also asserts the Board's resolution exempting the 12 high schools from

City's zoning and land use laws was overbroad. It argues the resolution did not specify

which facilities at each high school were exempted and from which specific zoning laws

were they exempted.

The Board's resolution. On May 10, 2011, the Board considered a resolution that

included the following prefatory recitals:

"WHEREAS, [District] currently uses the facilities at certain

comprehensive High School Sites ('School Sites') for educational

purposes (the location of the School Sites is attached hereto as

Exhibit 'A');

"WHEREAS, District proposes to modernize and construct new

facilities ('Projects') at their School Sites;

"WHEREAS, the Projects are for educational facilities as required

by Government [Code] Section 53094 and is subject to design

review by the Division of the State Architect ('DSA') under

Education Code section 17280 et seq.;

31 We further note there is no language in Government Code section 53094 or its

related provisions requiring any particular notice and opportunity to be heard be given to

owners of adjacent property before a school district's board adopts a resolution exempting

a proposed use of district property from applicable zoning ordinances. To the extent

Taxpayers believes such notice should be required, it is within the province of the

Legislature, not the courts, to enact legislation requiring notice and an opportunity to be

heard. Absent such legislation, reasonable notice and an opportunity to be heard will be

required only when the proposed action will result in a significant deprivation of a

property interest as discussed above.

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"WHEREAS, Government Code section 53094 authorizes District,

by a vote of two-thirds of its members, to render city zoning

ordinances inapplicable to the Projects and School Sites when the

District's use is for educational facilities;

"WHEREAS, School Sites are located within the boundaries of

[City]; and

"WHEREAS, District has balanced the interests of the public,

including those of District and those of [City] and determined that

the interests of the public are best served by commencing and

completing the Projects upon the School Sites under DSA review."

The Board then unanimously adopted the following resolutions:

"Section 1. That all the above recitals are correct.

"Section 2. That [District] hereby renders inapplicable any zoning

ordinances of [City] including, without limitation, the City's Zoning

Ordinances and General Plans, which would otherwise be applicable

to the Projects or the School Sites.

"Section 3. That the Superintendent of [District], or his designee, is

further directed to give written notice to the City as required by

Government Code Section 53094 within ten (10) days of this

action."

Exhibit A attached to the resolution set forth the names and addresses of Hoover and 11

other District high school projects.32 On May 12, 2011, District gave City written notice

of the Board's exemption action under Government Code section 53094.

32 Hoover's project was described as "Hoover High School Stadium and Sports

Facility Improvements." Nine of the other 11 high school projects contained similar

project descriptions for stadium and/or sports facility improvements. The two remaining

high school projects were described as "Whole Site Modernization" for La Jolla High

School and Serra High School. Given the timing of the Board's resolution and the

context of this case, those projects presumably refer to the projects listed for each high

school site in Proposition S.

64

Taxpayers argues the Board's exemption action was overbroad because it referred

to, and exempted, "educational facilities" rather than "classroom facilities," as used in

Government Code section 53094. That statute authorizes a school district board to

exempt from zoning ordinances a proposed use of district property, except when the

proposed use is for "nonclassroom facilities." (Gov. Code, § 53094, subd. (b).) In Santa

Cruz, the court considered the question of what proposed property uses qualify for zoning

law exemption under Government Code section 53094 and what uses do not. It

interpreted "nonclassroom facilities" under Government Code section 53094 as meaning

"those not directly used for or related to student instruction." (Santa Cruz, supra, 210

Cal.App.3d at p. 7.) Therefore, school district property directly used for or related to

student instruction qualifies for zoning law exemption under that statute. (Id. at pp. 7-8.)

In that case, the school district exempted from city zoning laws the school district's

project to replace a high school stadium's lighting using higher, aluminum poles in place

of shorter, wooden poles. (Id. at pp. 3-4.) Santa Cruz concluded there was sufficient

evidence to support a finding the stadium's field "serves an important educational purpose

at [the high school] and is directly used for student instruction." (Id. at p. 8.)

Furthermore, although evening athletic competitions in a different context may be

considered "extracurricular activities," Santa Cruz noted the California Supreme Court

had concluded they "are an integral and vital part of an educational program and that they

are 'educational' within the free education guaranteed by the California Constitution."

(Id. at pp. 8-9.) Based on that reasoning, we conclude the distinction between classroom

facilities and nonclassroom facilities under Government Code section 53094 turns on

65

whether the proposed use of the facilities is directly for or related to educational purposes

(i.e., the property is "directly used for or related to student instruction"). (Santa Cruz, at

p. 7.)

In this case, the recitations to the Board's exemption resolution expressly stated:

"[T]he Projects are for educational facilities as required by Government [Code] Section

53094." By inclusion of that descriptive language, the Board's resolution, when read as a

whole, exempted only those listed District projects or properties used as educational

facilities and therefore implicitly excluded from exemption those projects or properties

used as noneducational facilities. Because under Santa Cruz educational facilities and

classroom facilities have the same meaning for purposes of Government Code section

53094, we conclude the Board's exemption resolution was not overbroad in exempting

from City's zoning laws those projects at the 12 high schools to the extent they were for

educational (i.e., classroom) purposes. We agree with, and adopt, Santa Cruz's holding

that, absent extraordinary circumstances, high school athletic stadium lighting is directly

used for or related to the educational purposes of the high school and therefore should be

considered part of classroom facilities that may be exempted from zoning laws pursuant

to Government Code section 53094. (Santa Cruz, supra, 210 Cal.App.3d at pp. 7-9.)

The Board's resolution properly exempted Hoover's new stadium lighting from City's

zoning and land use laws.

Furthermore, to the extent certain language in the Board's resolution could be

interpreted as exempting nonclassroom facilities, our interpretation of that language

considering the entire resolution limits the Board's zoning law exemption to only those

66

projects or properties directly used for or related to educational, or classroom, purposes.

The Board's resolution stated it made inapplicable those City's zoning laws and general

plans that "would otherwise be applicable to the Projects or the School Sites." Although

it may be possible to interpret that language, in isolation, as exempting all aspects of the

Proposition S projects at the 12 listed high schools, whether for educational uses or not

(or even as applying to all educational and noneducational facilities at the 12 high

schools), we conclude that when that language is read in the context of the entire

resolution, the Board's resolution exempts from City's zoning laws only those parts of the

projects or properties at the 12 high schools directly used for or related to educational, or

classroom, purposes within the meaning of Government Code section 53094.33 Contrary

to Taxpayers's assertion, the Board was not required to itemize each and every aspect of

the high school projects that will be directly used for or related to educational, or

classroom, purposes. Taxpayers concedes it has not found any case addressing the

sufficiency of the description of the project, classroom facility, and zoning laws for

purposes of an exemption action under Government Code section 53094.34 Because we

construe the Board's resolution as exempting only those projects directly used for or

related to educational, or classroom, purposes, we need not decide what specific

33 Of course, had the Board's resolution been written using more precise language,

any ambiguity could have been avoided and its construction would have been self-

evident.

34 City of Stockton v. Marina Towers, LLC (2009) 171 Cal.App.4th 93, cited by

Taxpayers, is inapposite to this case, does not involve Government Code section 53094,

and therefore does not persuade us to reach a contrary conclusion.

67

descriptions may required for exemption in other cases under Government Code section

53094. The Board did not act arbitrarily or capriciously by adopting the resolution

exempting the 12 high school projects from City's zoning ordinances and general plans.

F

Taxpayers also asserts the Board's zoning exemption action was a "project" within

the meaning of CEQA and therefore required District to comply with CEQA before the

Board took that action.

A government agency does not have a duty to comply with CEQA unless its

actions will constitute "approv[al]" of a "project." (Lexington Hills Assn. v. State of

California (1988) 200 Cal.App.3d 415, 430.) Public Resources Code section 21065

defines a "project" under CEQA as "an activity which may cause either a direct physical

change in the environment, or a reasonably foreseeable indirect physical change in the

environment." The Guidelines define "approval" for public agency projects as "the

decision by a public agency which commits the agency to a definite course of action in

regard to a project intended to be carried out by any person." (Guidelines, § 15352, subd.

(a).) "An activity that is not a 'project' as defined in the Public Resources Code (see [Pub.

Resources Code,] § 21065) and the Guidelines (see [Guidelines] § 15378) is not subject

to CEQA." (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41

Cal.4th 372, 380.) The Guidelines state: "The term 'project' refers to the activity which is

being approved and which may be subject to several discretionary approvals by

governmental agencies. The term 'project' does not mean each separate governmental

approval." (Guidelines, § 15378, subd. (c).) "Whether an activity constitutes a project

68

under CEQA is a question of law that can be decided de novo based on the undisputed

evidence in the record." (Plastic Pipe & Fittings Assn. v. California Building Standards

Com. (2004) 124 Cal.App.4th 1390, 1412-1413.)

The Board's zoning exemption resolution was neither an "approval" nor a "project"

under CEQA. First, it was not an "approval" because the resolution did not commit

District to "a definite course of action in regard to a project." (Guidelines, § 15352, subd.

(a).) Rather, the resolution referred to 12 proposed high school projects and exempted

them from City's zoning and land use laws. By exempting those proposed projects from

City's zoning and land use laws, the Board did not commit District to a definite course of

action regarding any of the those projects. Instead, the exemption resolution was merely

one prerequisite to completion of the proposed projects should District take affirmative

action actually committing itself to a definite course of action regarding any or all of

those projects. By adopting the exemption resolution, the Board did not commit District

to any of the 12 proposed projects or foreclose alternatives to those projects. None of the

cases cited by Taxpayers is factually apposite to this case or persuades us to reach a

contrary conclusion. (See, e.g., City of Carmel-by-the-Sea v. Board of Supervisors

(1986) 183 Cal.App.3d 229.) The Board's zoning exemption resolution did not constitute

an "approval" under CEQA of any of the 12 proposed high school projects.

Second, the Board's zoning exemption resolution was not, in itself, a "project"

under CEQA. The resolution was not itself "an activity which may cause either a direct

physical change in the environment, or a reasonably foreseeable indirect physical change

in the environment" (Pub. Resources Code, § 21065), but rather related to 12 proposed

69

high school projects that, if approved by District, could constitute an activity that may

cause a physical change in the environment. Alternatively stated, the Board's zoning

exemption resolution was not an "activity" in itself that could cause any physical change

in the environment. Each proposed high school project constituted an activity that could

cause a physical change in the environment. The Board's resolution exempting those

projects from City's zoning laws was not a separate activity requiring its own CEQA

review in addition to the CEQA review required for each high school project. (Cf.

Guidelines, § 15378, subd. (c) ["The term 'project' refers to the activity which is being

approved and which may be subject to several discretionary approvals by governmental

agencies. The term 'project' does not mean each separate governmental approval."].)

Because the Board's zoning exemption resolution was neither an "approv[al]" nor

a "project," that action was not subject to CEQA and did not require District to conduct

any CEQA review before the Board adopted that resolution. (Lexington Hills Assn. v.

State of California, supra, 200 Cal.App.3d at p. 430; Muzzy Ranch Co. v. Solano County

Airport Land Use Com., supra, 41 Cal.4th at p. 380.) Rather, before District approves

each of the 12 high school projects, it must comply with CEQA. For example, in

conducting the Initial Study and adopting the MND regarding the Project (i.e., Hoover's

proposed project), District presumably recognized the Project was a "project" under

CEQA that required CEQA compliance before it approved the Project.

70

G

Finally, Taxpayers asserts the trial court erred by dismissing its third cause of

action because it necessarily prevailed on that cause of action when the Board adopted

the zoning exemption resolution after Taxpayers filed the instant action.

In the third cause of action in its original complaint filed on February 9, 2011,

Taxpayers alleged the Project was in violation of local laws and land use and planning

principles. It also alleged the Project was not consistent with the purposes of applicable

zoning and general plan. Taxpayers sought injunctive relief requiring District to

reconsider the Project "consistent with requirements of applicable state and local laws."

On May 10, 2011, the Board adopted the resolution exempting the Project (and 11 other

high school projects) from City's zoning and land use laws. On July 7, 2011, Taxpayers

filed its first amended complaint, which restated its original third cause of action and

incorporated allegations challenging the Board's May 10, 2011, exemption action. That

complaint requested relief setting aside that exemption action.

Based on our independent review of the original complaint, we conclude

Taxpayers did not obtain the primary relief it sought in that complaint's third cause of

action when the Board subsequently adopted the zoning exemption resolution. Taxpayers

sought relief requiring District to reconsider its approval of the Project considering

applicable zoning and land use laws. It did not seek relief exempting the Project from

applicable zoning and land use laws. Therefore, when the Board adopted the zoning

exemption resolution, Taxpayers did not obtain the primary relief it sought in its original

third cause of action. Belth v. Garamendi (1991) 232 Cal.App.3d 896 and Graham v.

71

DaimlerChrysler Corp. (2004) 34 Cal.4th 553, cited by Taxpayers, are factually

inapposite and do not persuade us to reach a contrary conclusion. To the extent

Taxpayers argues the exemption resolution somehow validated District's earlier failure to

consider the Project's inconsistency with City's zoning laws when it adopted the Initial

Study and MND, we conclude the exemption did not absolve District of its CEQA duty to

consider any such inconsistencies before approving the Project. Rather, Board's

resolution simply exempted the Project's classroom facilities from applicable zoning and

land use laws before actual construction of the Project began, thereby avoiding any actual

violation of City's zoning and land use laws. (City of Santa Clara v. Santa Clara Unified

Sch. Dist. (1971) 22 Cal.App.3d 152, 158 [Gov. Code, § 53094 exemption may be made

at any time].) Taxpayers did not prevail on its third cause of action when the Board

adopted the zoning exemption resolution.35

35 District filed a motion to compel correction of Taxpayers's reply brief by striking

those portions referring to a document not contained in the record on appeal (i.e., August

9, 2011, memorandum of City's attorney). We deny the motion to correct, but

nevertheless disregard those portions of Taxpayers's reply brief that refer to or discuss

any documents not contained in the record on appeal, including the memorandum in

question. (Cal. Rules of Court, rule 8.204(a)(2)(C); Pulver v. Avco Financial Services

(1986) 182 Cal.App.3d 622, 632; Doers v. Golden Gate Bridge etc. Dist. (1979) 23

Cal.3d 180, 184, fn. 1; Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6; cf.

C.J.A. Corp. v. Trans-Action Financial Corp. (2001) 86 Cal.App.4th 664, 673 [granting

motion to strike portions of brief referring to evidence not contained in record on

appeal].) Furthermore, because that memorandum is irrelevant to our disposition of this

appeal, we deny Taxpayers's request that we take judicial notice of that document.

72

H

Because we reject all of Taxpayers's assertions challenging and/or relating to the

Board's zoning exemption resolution, we conclude Taxpayers has not carried its burden

on appeal to show the trial court erred by dismissing its third and fourth causes of action.

DISPOSITION

The judgment is reversed to the extent it dismissed the first and second causes of

action; in all other respects, the judgment is affirmed. The matter is remanded with

directions that the superior court grant the petition for writ of mandate and issue the

injunctive and declaratory relief sought in the first and second causes of action of the first

amended complaint and petition, to the extent consistent with this opinion, including, but

not limited to, (1) ordering District to vacate its approval of the Project and the mitigated

negative declaration (MND) and to cause an EIR to be prepared, and (2) enjoining

District from using Proposition S bond proceeds to pay for field lighting at Hoover's

stadium and any other high school stadium for which Proposition S did not specifically

list field lighting as part of their projects. Taxpayers shall recover its costs of appeal.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

73

Filed 4/25/13

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TAXPAYERS FOR ACCOUNTABLE D060999

SCHOOL BOND SPENDING,

Plaintiff and Appellant,

(Super. Ct. No.

v. 37-2011-00085714-CU-WM-CTL)

SAN DIEGO UNIFIED SCHOOL

DISTRICT, ORDER CERTIFYING OPINION

FOR PUBLICATION

Defendant and Respondent.

THE COURT:

The opinion filed March 26, 2013, is ordered certified for publication.

The attorneys of record are:

Law Office of Craig A. Sherman, Craig A. Sherman and Todd T. Cardiff for

Plaintiff and Appellant.

Dannis Woliver Kelley, Mark W. Kelley, Janet L. Mueller and Cameron C. Ward

for Defendant and Respondent.

McCONNELL, P. J.

Copies to: All parties