July 2011
Number 23

A recent Court of Appeal decision regarding the California Environmental Quality Act (CEQA) addresses the extent to which a local government must consider school-related impacts in an environmental impact report (“EIR”) for new development. (Chawanakee Unified School District v. County of Madera, et al. (June 21, 2011, ___ Cal.App.4th ____ [2011 WL 2449299] “Chawanakee”) This case is significant in that it rejects the position often asserted by developers that payment of the statutory developer fee satisfies all obligations to consider and mitigate school-related impacts under CEQA.

Until Senate Bill 50 (“SB 50”) went into effect in 1999, school districts had relied on a series of judicial decisions that allowed districts to raise under CEQA issues regarding impacts of development on schools. SB 50 included language that was intended to place limits on those prior cases, while at the same time establishing the ability to seek higher developer fees if certain criteria were met. SB 50 changed subdivision (a) of Government Code section 65996 to provide that statutory developer fees “shall be the exclusive means of considering and mitigating impacts on school facilities that occur or might occur as a result of any legislative or adjudicative act . . . involving [the approval of the] development of real property.” Elsewhere, section 65996 provides that the mitigation provisions set forth by statute “are hereby deemed to provide full and complete school facilities mitigation,” and that “a state or local agency may not deny or refuse to approve [the] development of real property . . . on the basis that school facilities are inadequate.” (Gov. Code § 65996, subd. (b).)

Based on the foregoing, over the past decade, developers have argued, and many local agencies reviewing developments have agreed, that an EIR prepared for a project need not consider any impact relating to schools whatsoever. This position appears to be contradicted by Government Code section 65996, subdivision (e), which states, “[N]othing in this section shall be interpreted to limit or prohibit the ability of a local agency to mitigate the impacts of land use approvals other than on the need for school facilities.” Additionally, subdivision (c) of section 65996 provides that the school facilities issues that SB 50 sought to preempt are solely those “relating to a school district’s ability to accommodate enrollment.”

Lozano Smith has for many years contended on behalf of its school district clients that lead agencies undertaking a CEQA analysis of new development projects must still consider school issues that are not directly related to accommodating enrollment to be generated by a development project. This can include issues such as traffic, noise, biological impacts, pedestrian safety, and other issues that are not solely related to accommodating new students in school facilities. The Chawanakee case confirmed Lozano Smith’s long-held position in these regards.

In the Chawanakee case, the school district sued to overturn a certification by the County of Madera (“County”) of an EIR for a residential development project that would have involved construction of 5,200 residential dwelling units, which were expected to generate 3,200 new students. The district argued that the EIR was inadequate because it failed to consider certain school impacts not related to construction of new school facilities. Such impacts included increased traffic created by transporting students from the project to existing district schools, as well as certain environmental impacts that could be caused by construction of interim student housing that would be needed until the schools that would serve the project would be completed.

The court determined that SB 50 does not excuse a lead agency from conducting an environmental review of school impacts other than an impact “on school facilities.” With respect to this terminology from subdivision (a) of section 65996, the Court opined:

  •  [T]he use of the term “on” indicates a direct relationship between the object (i.e. school facilities) and the impact and excludes impacts to other parts of the physical environment. Consequently, the phrase “impacts on school facilities” used in SB 50 does not cover all possible environmental impacts that have any type of connection or relationship to schools. As a result, the court of appeal concluded that the County would have to set aside the certification of the EIR and approvals of the project and take action necessary to bring the EIR into compliance with CEQA regarding its analysis of “the (1) traffic from private and school bus trips to existing schools outside the project area pending the construction of schools within the project area and (2) the potential environmental effects from the construction of additions, either temporary or permanent, to existing schools prior to the construction of schools in the project area.”

This case will assist school districts in obtaining mitigation of those impacts that are not directly linked to school facilities construction to accommodate new students generated by development. It is not yet known whether the County may appeal this decision.

Additionally, to assist schools in dealing with developer fee issues, Lozano Smith’s Facilities and Business Practice Group publishes its Developer Fee Handbook for School Facilities: A User’s Guide to Qualifying for, Imposing, Increasing, Collecting, Using and Accounting for School Impact Fees in California. The handbook is designed to help school districts reduce their legal costs by providing comprehensive information regarding California law and the process for collecting school impact fees. Toward this end, the handbook contains procedures, time lines, checklists, and forms to be used when adopting fees and/or fee increases. For more information on how to obtain a copy of the Developer Fee Handbook, or to order a copy, please consult our website or contact our Client Services department at or at (800) 445-9430.

If you have any questions regarding developer fee issues, or questions regarding facilities financing and construction generally, please do not hesitate to contact one of our eight offices located statewide or consult our website.

Harold Freiman
Walnut Creek Office

Megan Macy
Shareholder and Facilities & Business Practice Group Co-Chair
Sacramento Office

© 2011 Lozano Smith


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