Appellate Court Finds That Solar Energy Project Was Not Exempt From City’s Zoning Ordinance

November 2019
Number 75

A recent California appellate court ruling has clarified the requirements for a local agency’s compliance with city or county zoning ordinances. In City of Hesperia v. Lake Arrowhead Community Services District, the Fourth Appellate District held that a community services district did not qualify for zoning compliance exemptions as provided in sections 53091(e) and 53096(a) of the Government Code, after the district had adopted a resolution finding the exemptions applicable in preparation for constructing a solar energy facility.

Background

In City of Hesperia, the Lake Arrowhead Community Services District (District), sought to overturn a trial court’s decision that construction of a solar energy facility did not qualify for exemption from the City of Hesperia’s (City) zoning ordinances. The solar energy facility (Project) was to be constructed on property owned by the District within City limits. The property, which was already in use as a water reclamation facility, was zoned “Rural Residential.” The City’s municipal code provided that “solar farms” were only allowed on nonresidential and nonagricultural property with a conditional use permit and could not be located within 660 feet of agricultural or residential property. Over the City’s objections, the District passed a resolution finding that the City’s zoning ordinances did not apply to the Project, as it was both absolutely exempt and qualifiedly exempt under Government Code provisions specific to energy projects. The City filed suit and prevailed at the trial court level, and the District appealed.

Analysis

Government Code section 53091(a) provides generally that a local agency must comply with “all applicable building ordinances and zoning ordinances of the county or city in which the territory of the local agency is situated.” This case considers two exemptions from this general rule.

Government Code section 53091(e) provides an absolute exemption from local zoning ordinances for the “the location or construction of facilities… for the production or generation of electrical energy” unless the facilities are used for storage or transmission of electrical energy. While the Project was designed to produce energy, that energy was intended to be transmitted to the local utility’s electrical grid. The court concluded that because section 53091(e) does not exempt “transmission” of electrical energy from local zoning ordinances, the Project was not exempt from those ordinances under section 53091(e).

Government Code section 53096(a) provides a qualified exemption to local zoning regulations for a local agency that holds a public hearing and adopts a resolution determining that “there is no feasible alternative to its proposal.” In order to use this exemption, the local agency must properly determine through substantial evidence that no feasible alternatives exist for the location of the proposed facility. The court concluded that the District’s determination that there was no feasible alternative location for the Project was not supported by substantial evidence, and that the District had failed to provide evidence that it had considered “economic, environmental, social, or technological factors associated with an alternative location.” Thus, the Project was not exempt under section 53096(a).

Since the Project did not did not meet the requirements for exemption from the City’s zoning ordinances under either section 53091(e) or section 53096(a), the court ruled that it was not exempt from the City’s zoning ordinances.

Takeaways

The court in City of Hesperia took a narrow view of a local agency’s ability to exempt itself from local zoning ordinances in order to proceed with energy projects. In particular, this ruling makes clear that a local agency’s finding that “there is no feasible alternative to its proposal” must be supported by substantial evidence that the agency had carefully considered alternative locations for its project.

If you have any questions about the City of Hesperia v. Lake Arrowhead Community Services District decision or building and zoning issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Claudia P. Weaver

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Two New Laws Add Duties Regarding Student Sexual Harassment Policies And Domestic Violence Resource Information

November 2019
Number 71

The Governor has signed legislation that promotes student safety by providing additional resources for combating sexual harassment and domestic violence.

Assembly Bill (AB) 543: Student Sexual Harassment Policy Posters

Starting January 1, 2020, schools serving grades 9-12 must create and display posters that notify students of the school’s student sexual harassment policy. AB 543 requires that the posters be age appropriate, culturally relevant, no smaller than 8.5 by 11 inches, in at least 12-point font, and displayed in English and in any primary language spoken by 15 percent or more of the students enrolled at the school. Schools may partner with local, state, or federal agencies, or nonprofit organizations to design and create the poster. AB 543 applies to school districts, county offices of education and charter schools.

The posters must include, at a minimum: (1) the procedures and contact information of the appropriate schoolsite official for reporting sexual harassment; (2) the rights of the reporting student, complainant, and respondent; and (3) the schoolsite’s responsibilities under the policy.

The posters must be displayed prominently and conspicuously in each schoolsite bathroom and locker room. The governing board has full discretion to select other appropriate locations where it may choose to display the posters, such as in classrooms, hallways, gymnasiums, and cafeterias.

Currently, California educational institutions are required to display their sexual harassment policies in prominent campus locations where similar notices are posted, and copies must be distributed to parents at the beginning of the school year and as part of any orientation program for new students. Under AB 543, the policy must also be provided as part of any orientation program for new or continuing students at the beginning of each quarter, semester or summer session, as applicable.

Senate Bill (SB) 316: Student Identification Cards – Domestic Violence Hotline

Currently, the telephone number for the National Suicide Prevention Lifeline must be included on student identification cards issued by public schools, including charter schools, and private schools serving students in any of grades 7 to 12, and public and private colleges and universities that issue student identification cards. (See 2018 Client News Brief Number 78.) The Crisis Text Line, and a local suicide prevention hotline phone number may also be included. Colleges and universities may also include the campus police or security phone numbers, if applicable, or the local nonemergency phone number.

Beginning October 1, 2020, SB 316 requires schools serving students in any of grades 7 to 12, that issue student identification cards, to also print the telephone number for the National Domestic Violence Hotline, 1-800-799-7233, on either side of their student identification cards.

Similarly, commencing October 1, 2020, public and private colleges and universities that issue student identification cards must have printed on either side of their student identification cards the National Domestic Violence Hotline number or a local domestic violence hotline that provides confidential support services by telephone 24 hours a day.

These new requirements apply when student identification cards are issued for the first time or when lost or damaged cards are replaced.

Schools and colleges that have a supply of unissued student identification cards as of January 1, 2020, that do not include the new information, must continue to issue those identification cards until that supply is depleted.

It is worth noting that Assembly Bill 624 proposed that a sexual assault hotline number also be included on student identification cards, but this proposed act was vetoed by the Governor.

These new laws both take effect on January 1, 2020, and that is the date by which the student sexual harassment policy poster requirements under AB 543 must be implemented. October 1, 2020, is the deadline for carrying out SB 316’s new student identification card requirements.

If you have questions regarding fulfilling these new obligations or regarding student safety in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Laws Promote Student Safety: Bullying, Harassment, And Suicide Prevention

November 2019
Number 70

The Governor has signed legislation that promotes student safety by providing additional resources for suicide prevention and combating bullying and sexual harassment.

Assembly Bill (AB) 1767: Suicide Prevention Policies for Kindergarten and Elementary School Students

Currently, local educational agencies serving students in grades 7-12 are required to have adopted student suicide prevention policies pertaining specifically to students in those grades. AB 1767 amends Education Code section 215 to expand the requirement for the adoption of suicide prevention policies to local educational agencies serving students in kindergarten and grades 1-6.

Before the beginning of the 2020-2021 school year, governing boards of local educational agencies serving elementary school students, must adopt, at a regularly scheduled meeting, a suicide prevention policy for their K-6th graders. The policy must be age appropriate, and delivered and discussed in a manner that is sensitive to the needs of young students.

A policy pertaining to K-6th graders must be developed in consultation with school and community stakeholders, the county mental health plan, school-employed mental health professionals, and suicide prevention experts. The policy must address suicide prevention, intervention and postvention, and ensure coordination with the county mental health plan if a referral is made on behalf of a student who is a Medi-Cal beneficiary.

Suicide prevention policies applicable to any grade span must be reviewed and, if necessary, updated, at least every five years.

AB 34: Bullying, Discrimination, Harassment, and Suicide Prevention Website Information

Also, commencing with the 2020-2021 school year, local educational agencies will be required to provide specified bullying, discrimination, harassment, and suicide prevention information in a prominent location on their websites and in a manner that is easily accessible to students, parents and guardians.

AB 34 adds section 234.6 to the Education Code, which provides the full list of the required information that must be posted, including:

  1. The local educational agency’s:
    • Student suicide prevention policy for 7th-12th graders;
    • Student suicide prevention policy for K-6th graders;
    • Sexual harassment policy as it pertains to students;
    • Policy on preventing and responding to hate violence, if it exists;
  2. Anti-discrimination, anti-harassment, and anti-intimidation policies; and/or
  3. Anti-bullying and anti-cyberbullying policies and procedures.
  4. The definition of discrimination and harassment and copies of Education Code sections 230 (prohibited practices on the basis of sex) and 221.8 (list of rights under Title IX).
  5. The name and contact information of the Title IX Coordinator.
  6. The rights of students and the public, and responsibilities of the local educational agency, under Title IX.
  7. A description of how to file a Title IX complaint, including an explanation of the statute of limitations and how the complaint will be investigated, with weblinks to this information on the United States Department of Education Office for Civil Rights (OCR)’s website.
  8. A weblink to the federal regulations implementing Title IX from the OCR website.
  9. Social media bullying prevention and statewide and community resource information for students who have been victims of violence, bullying, discrimination, intimidation and harassment.

While some of these items are already required to be posted on the website, particular attention should be given to ensure that all of the required elements are included.

These new laws take effect on January 1, 2020, but they will need to be implemented by the start of the 2020-2021 school year. If your district would like staff or student training on any of these topics, please contact us.

If you have questions regarding implementing these new requirements or regarding student safety in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Prohibits Barriers To Charter School Enrollment

November 2019
Number 69

A new law is intended to discourage the improper recruitment and disenrollment of charter school students, particularly students who belong to certain protected classes. Recently signed by Governor Newsom, Senate Bill (SB) 75 adds a provision to California’s Charter Schools Act to prohibit charter schools from discouraging a student from enrolling or continuing to enroll in the charter school.

The law lists explicitly unlawful bases for “counseling out” students and their families, including nationality, race, ethnicity, sexual orientation, or if a student exhibits characteristics of: a disability; an academically low-achieving student; an English learner; a neglected or delinquent student; a homeless student; a student who is economically disadvantaged; or a foster youth. In furtherance of the law’s purpose, charter schools are also prohibited from requesting a student’s records, or requiring a parent, guardian, or student to submit the student’s records to the charter school, prior to enrollment. Historically, charter schools have always been required to accept all students that are California residents, regardless of academic achievement, disability, economic status, etc. Here, the California Legislature recognizes problems that have arisen, where certain groups of students were being discouraged from enrolling, or encouraged to disenroll, in some charter schools.

Under the law, the California Department of Education (CDE) is directed to develop a notice and complaint form stating the new legal requirements, and charter schools are required to post the notice on their respective websites. Charter schools also now have an affirmative duty to provide a copy of the CDE notice to parents, guardians, and students over age eighteen when the parent, guardian, or student over age eighteen inquires about enrollment; before conducting an enrollment lottery; and before the disenrollment of any student. In order to ensure enforcement, any member of the public has a right to file a complaint with the charter school’s authorizer, often the local school district, if the person suspects a charter school has violated the provisions of this law. CDE’s notice and complaint form can be found at https://www.cde.ca.gov/sp/ch/cscomplaint.asp.

Although the law creates a process for aggrieved families to complain to charter authorizers, it is silent regarding exactly what action a charter authorizer must take when it receives a complaint. The recently revised statutes regarding charter school renewals, which go into effect in July 2020, shed some light onto the complaint review process (See 2019 Client News Brief No. 49). The law now indicates that, when determining whether to renew a school’s charter, an authorizer must consider, along with other criteria, any substantiated complaints that the charter school has not complied with the new enrollment requirements described above. The determination of whether a complaint is “substantiated” is left to the charter authorizer, and thus the law infers that charter authorizers must develop their own complaint investigation processes. Still, some questions remain unanswered. For example, if the authorizer investigates the complaint and discovers a potential legal violation, what action is the charter authorizer supposed to take, aside from considering whether to revoke the charter? The new law does not appear to create an enforcement mechanism, aside from considering compliance during the charter renewal process.

Takeaways

Charter schools and charter authorizers should be careful to ensure that charter schools are not discouraging any student from attaining or maintaining charter school enrollment. Charter schools must be extra careful when dealing with students who are members of the groups specifically protected under the law. Since the law took immediate effect in July, charter schools should post the CDE notice and complaint form on their websites and implement clear policies for staff regarding the distribution of the CDE notice, in short order. Note that charter schools are still permitted to suspend or expel students for disciplinary reasons, so long as such discipline conforms to federal and state statutory and constitutional due process requirements, and is otherwise consistent with the law, and the processes laid out in the charter.

If you have any questions about SB 75, the amendments to the Education Code regarding charter schools, or charter school student enrollment in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us onFacebook, Twitter and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Sophia V. Cohn

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Addresses Impact Of Dismissals And Settlement Of Due Process Complaints On The IDEA’s Administrative Remedy Exhaustion Requirement

October 2019
Number 43

The recent opinion of the Ninth Circuit Court of Appeals in Paul G. v. Monterey Peninsula Unified School District clarifies that dismissal or settlement of a special education due process hearing inadvance of a hearing and final administrative decision from the Office of Administrative Hearings (OAH), does not satisfy the requirement that a plaintiff exhaust administrative remedies under the Individuals with Disabilities Act (IDEA) before initiating a lawsuit in federal court asserting claims which could be redressed by the IDEA. In Paul G., the Ninth Circuit held that an adult student with autism could not sue his school district or state educational agency under the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act of 1973 (Section 504), for failing to make an in-state residential placement available to him without having first exhausted IDEA administrative remedies, that none of the exceptions to exhaustion of administrative remedies applied, and that settlement of his special education due process case did not satisfy the exhaustion requirement.

Background

Student Paul G. was an adult special education student with autism who began having episodes of violent and threatening behavior. After unsuccessful efforts to find an appropriate educational placement for Paul, the school district offered to place him in a residential facility. However, no residential facility in California would accept the student because he was 18 years old. Paul enrolled in an out-of-state residential facility, but later became homesick, and returned home.

The student subsequently filed for due process with OAH against both the school district and the California Department of Education (CDE), alleging that the lack of an in-state residential facility for adults denied him a free appropriate public education (FAPE) under the IDEA. As a remedy, the student sought a residential placement in California and an order directing the CDE to develop in-state residential facilities for adult students. OAH dismissed the claims against the CDE, ruling that OAH did not have jurisdiction to order the creation of facilities, and that the school district, not the CDE, was responsible for education decisions affecting the student. Thereafter, the student entered into a settlement agreement with the school district, causing OAH to dismiss the case, without the due process complaint proceeding to hearing or OAH ruling on the merits of the student’s IDEA claim.

The student then initiated a lawsuit in federal court, alleging the CDE violated the ADA and Section 504, and seeking monetary damages for those alleged wrongs. The central theme of his complaint was that to receive a FAPE, he required an in-state residential placement, and the CDE had failed to provide him a residential placement in California. The United States District Court dismissed the student’s case, due to his failure to exhaust the IDEA’s administrative remedies, and the student appealed to the Ninth Circuit.

The Court’s Opinion

The Ninth Circuit considered whether the student was required to exhaust the IDEA’s administrative remedies under the circumstances, and if so, whether an exception to the exhaustion requirement applied. When a plaintiff seeks relief under the IDEA or under any other statute where the relief sought would also be available under the IDEA, the plaintiff must exhaust the IDEA’s administrative procedures before filing a civil action. Exhaustion is not required when use of the administrative process would be futile, the claim arises from policy or practice of general applicability that is contrary to law, or it is improbable that adequate relief can be obtained by pursuing administrative remedies.

The student argued that because his federal claims were brought under the ADA and Section 504, and not the IDEA, the exhaustion of remedies requirement for IDEA claims did not apply. Applying the United States Supreme Court’s test in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), the Ninth Circuit addressed this argument by analyzing whether his ADA and Section 504 claims could have been brought against a public facility that was not a school, or whether an adult employee or visitor could present the same grievance against the school. The court concluded that the answer to both these tests is no, because the relief Paul sought was fundamentally educational – access to a particular kind of school as required by his individualized education program (IEP). Therefore, even though the student brought suit under the ADA and Section 504, and not the IDEA, the student was required to exhaust administrative remedies because the relief sought was available under the IDEA. The Ninth Circuit also determined that none of the exceptions to the exhaustion requirement applied, thus concluding the student could not maintain this action after he failed to seek a final administrative decision regarding his alleged need for in-state residential education under the IDEA.

Takeaways

Paul G. is the first Ninth Circuit opinion to address exhaustion since the Supreme Court’s Fry decision
in 2017. In light of this decision, local educational agencies should carefully scrutinize any ADA or Section 504 claims that appear to seek relief that is fundamentally educational and related to a student’s unique needs. Further, a plaintiff may be unable to maintain a civil suit against a local educational agency if there is a dismissal or settlement prior to a final administrative decision.

If you have any questions about this case or special education matters in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

Sloan R. Simmons

Partner

Amanda E. Ruiz

Senior Counsel

Amanda J. Cordova

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Supreme Court Holds Firefighting Immunity Under California’s Government Claims Act Is A Waivable Affirmative Defense

October 2019
Number 45

In Quigley v. Garden Valley Fire Protection District, the California Supreme Court rejected the midtrial dismissal of a lawsuit involving a firefighter who suffered severe and permanent injuries after she was run over by a water truck while sleeping at a base camp. The court held that a firefighting immunity under Government Code section 850.4, part of California’s Government Claims Act (GCA) (Gov. Code, § 810 et seq.) is an affirmative defense which must be raised before trial and may be waived absent timely assertion.

Background

Plaintiff Rebecca Quigley was a U.S. Forest Service firefighter and part of a team assigned to assist with a large fire which broke out in the Plumas National Forest in September 2009. While Quigley was fighting the fire, she had to sleep at a base camp with other firefighters. One night, while Quigley was sleeping in a field in her sleeping bag, an employee of an independent contractor who was servicing a nearby shower unit drove his truck onto the field where Quigley was sleeping, severely injuring her. Quigley sued Garden Valley Fire Protection District, Chester Fire Protection District, and their employees for damages based upon claims of negligence, failure to warn, and dangerous condition of public property.

During the trial, defense counsel filed a motion for nonsuit arguing, for the first time, that the defendants were entitled to immunity under Government Code section 850.4, which grants public agencies and public employees immunity against claims for injuries caused by fighting fires. The trial court granted the motion, rejecting Quigley’s argument that the defendants waived the immunity defense when they failed to invoke immunity in their answer to her complaint. The trial court specifically ruled that Government Code section 850.4 immunity-one of several governmental immunities provided for under the Government Claims Act -is jurisdictional and therefore could be raised by a defendant at any time, including during trial. On appeal, the Court of Appeal affirmed the nonsuit in favor of the defendants and found that the defendants were immune from liability based upon a broad interpretation of section 850.4, and that such immunity is jurisdictional and thus can be raised at any time.

The Court’s Opinion

On review, the California Supreme Court considered whether the subject governmental immunity provision, section 850.4, constituted an affirmative defense, which a defendant must timely raise, or whether such immunity was absolute so that it served as a limitation on the fundamental jurisdiction of the courts. Affirmative defenses are considered waived if not timely asserted. In reaching its conclusion, the state high court affirmed that section 850.4 in fact confers an absolute immunity from liability.However, the court distinguished absolute immunity from a question of fundamental jurisdiction, and found the section 850.4 also operates as an affirmative defense. In other words, even as an absolute immunity, section 850.4 is only effective as a shield from liability if a defendant invokes the immunity before trial as an affirmative defense.

The court found that there existed a factual dispute as to whether the defendants timely invoked firefighting immunity when they raised an affirmative defense in their answer which broadly cited all the applicable immunity provisions “from Sections 810 to 996.6, inclusive” of the Government Claims Act. The court remanded the case back to the appellate court for further adjudication on this issue.

Takeaways

Quigley is significant in that it clarifies that defendants must timely invoke the absolute firefighting immunity provided for by Government Code section 850.4 in order to reap the benefits of the affirmative defense. Critically, it is likely that the court’s analysis in this respect will apply to the timely assertion of the other governmental immunity defenses provided for under the Government Claims Act.

If you have any questions about the Quigley case or about government claims in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Lauren A. Lyman

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Significant New Developer Fee Cases

October 2019
Number 44

As part of an uptick of cases in recent years regarding school impact fees, two recent cases argued by Lozano Smith on behalf of school districts have been decided by the California Sixth District Court of Appeal, with mixed results. The court ruled in relation to an “adults only” agricultural worker housing project that, when imposing prospective developer fees on development projects, school districts need not establish a reasonable relationship between the fee and the specific project in question. Instead, districts are merely required to establish a nexus between the fee and the general type of project that is at issue (e.g. residential, commercial, industrial). This favorable outcome came after the same appellate court, straying from prior precedent that supported deference to local agencies, issued a published decision invalidating a school district’s developer fee justification study. The court held that the study in question was invalid because it did not provide sufficient analysis to demonstrate that the school district would have to house new students generated from development in new facilities. Both cases are part of a trend toward greater judicial scrutiny of school districts’ imposition of developer fees.

School districts in California are authorized by law to impose fees on development projects, referred to as “developer fees” or “school impact fees.” There are three separate levels of fees that can be charged, each of which are subject to different legal requirements. The first case below addresses whether a school district must analyze the potential residential population of a particular development, as projected by the developer, before imposing fees on that particular development. The second case addresses the legal requirements for preparing a Level I fee justification study.

The Tanimura Case

Tanimura & Antle Fresh Foods v. Salinas Union High School District, 34 Cal.App.5th 775, addressed a dispute regarding Level 2 developer fees. The Salinas Union High School District (Salinas) had imposed a developer fee on a 100-unit agricultural employee housing complex commissioned by Tanimura & Antle Fresh Foods, Inc. (Tanimura) within Salinas. The complex, per the terms of its development permit issued by the Monterey County Board of Supervisors, was designed to house only agricultural workers, without dependents.

In recent years, many school districts have contended with developers who argue that fees should not be imposed on their projects because the developers expect that few or no potential school age students will live in the finished project. These arguments have been made, for instance, regarding housing intended for agricultural workers, college students, or young professionals. This case affirms that a school district need not consider the developer’s intended residents for a particular project, and can instead analyze the impact of residential housing projects across the district when imposing developer fees on residential projects.

In relation to its agricultural worker housing project, Tanimura sued for a refund of its fees, alleging that the developer fees imposed by Salinas were not reasonably related to a need for school facilities, as required by statute. Tanimura cited the project’s prohibition on dependents, arguing that, as no children would reside in the complex, its construction would not generate an increased burden on the district’s facilities. The Government Code requires a public agency, before imposing prospective developer fees, to establish the purpose of the fee, the agency’s use for the funds, a reasonable relationship between the fee’s use and the type of development project on which it will be imposed, and a reasonable relationship between the need for public facilities and the type of development project on which the fee is imposed. The trial court held in favor of Tanimura, reasoning that “case law-and common sense-preclude the application of an overbroad label in a fee study that does not account for a project’s actual impact.” The court opined that Salinas was required to account for the fact that no children would be permitted to live at the complex, and in failing to do so had not met the nexus requirement of the Government Code.

In a victory for school districts, and following argument by Lozano Smith (acting as co-counsel in this matter), the Court of Appeal reversed. The court held that, when establishing a nexus between developer fees and a development project, a public agency need not consider the specific project in question; its calculus is limited to the general type of project at issue (e.g., residential, commercial, or industrial). As applied here, Salinas was not required to consider the complex’s prohibition on dependents in its fee analysis. The district’s treatment of the complex as a generic, residential development was lawful.

The court asserted that its interpretation was the only “commonsense” reading of the statute that avoided practical absurdities. To adopt Tanimura’s position, the court held, “would have the practical effect of requiring a school district to expand its needs analysis to address the projected impact on school facilities of undefined, variant subtypes of residential construction not contemplated in the statute.” The court found such an effect to be contrary with the purpose of the statutes. Further, the law contains exceptions from developer fees for certain types of developments, including government-financed agricultural migrant worker housing. However, the Legislature has created no such exception for privately-financed farmworker housing. This indicates that the Legislature did not intend for projects such as the complex to be exempted from developer fees.

The Summerhill Case

In Summerhill Winchester, LLC, v. Campbell Union School District 30 Cal.App.5th 545, the Appellate Court invalidated the Level 1 developer fees adopted by Campbell Union School District (Campbell). In doing so, the court applied the rule laid out in a prior case, Shapell Industries, Inc. v. Governing Board of the Milpitas Unified School District (1991) 1 Cal.App.4th 218, that a Level 1 fee study must include an analysis of the following three factors: (1) the projection of the total amount of housing to be constructed within the school district; (2) estimation of the number of new students that are expected to result from the new development; and (3) estimation of what it will cost to provide the necessary school facilities for that approximate number of new students.

Regarding the first Shapell element, Campbell’s fee study stated that there were “in excess of 133” residential units that could be constructed over the next five years. The court took issue with the fact that these projections were not based on data from all of the planning departments within Campbell’s boundaries. The court also held that the study’s projection was too vague to support the imposition of fees. According to the court, a projection based on consultation with only some of the local jurisdictions within Campbell’s boundaries and using a phrase such as “in excess of” is “little better than saying that ‘some’ development is anticipated.” This was found to be inadequate because the study did not provide sufficient guidance for Campbell’s Board to determine whether or not new school facilities would be needed due to anticipated development. The court found it irrelevant that the district was already over capacity at all of its schools, and essentially rejected Campbell’s argument that new facilities would be needed to house students generated from development, regardless of the number of such students.

The court also found that the fee study was invalid because it did not provide sufficient evidence for the district’s Board to determine what type of school facilities would be needed to accommodate students generated by development, if any. The court based its decision on a narrow reading of the applicable statutes.

Developers may argue that the court’s decision means that a fee study must now establish what “type” of facilities a school district will construct to house students generated by development. However, prior case law, includingGarrick Development Co. v. Hayward Unified School District (1992) 3 Cal.App.4th 320, held that specific improvement plans or building proposals were not necessary. The court acknowledged that, underGarrick, “the Board did not have to identify specific facilities that would be built or make concrete construction plans.” At the same time, however, the court concluded that “the key missing element in the fee study was what new facilities would be necessary for the new students generated by new development.” These two statements are difficult to reconcile, and create a challenge when school districts decide how specifically their fee studies must describe student housing needs. However, it remains clear that specific school construction projects need not be identified.

The court’s opinion is likely to cause confusion and possibly to disrupt established law. As a result, school districts may wish to review the adequacy of their fee justification studies.

Lozano Smith represented the school district in the litigation and appeal, and requested, on behalf of the district, that the California Supreme Court depublish the case. The request for depublication was supported by CASBO, CASH, and CSBA, and not opposed, but the request was nevertheless denied by the Supreme Court.

Takeaways

Tanimura clarifies that public agencies, when imposing prospective developer fees, need not consider the specific development project, but only the type of development project at issue. The case should also help school districts resist the claims of developers who assert that they should be relieved of fees because few or no students will allegedly be generated by a specific project.

While some may argue for a broader application, the Summerhill decision can be viewed as the court’s application of the three-factorShapell test to a particular fee study. In this regard, the case simply calls for a fact-specific analysis based on already-established precedent. The following are some best practices following the Summerhill case:

  • Avoid use of imprecise language like “at least” when describing projected development.
  • If at all possible, consult with all planning departments within the school district’s jurisdiction.
  • If at all possible, identify the general types of school facility projects that may be constructed to accommodate students (e.g., new school construction, portable additions, a mix of both, etc.). We note that such identification in the fee study is not necessarily binding on the school district when it later implements its facilities plans.

If you have any questions about the Tanimura orSummerhill cases or about developer fees in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. Copies of Lozano Smith’s Developer Fee Handbook are available for purchase from Lozano Smith’s Client Services Department; you can submit your request to clientservices@lozanosmith.com. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Harold M. Freiman

Partner

Devon B. Lincoln

Partner

Kelly M. Rem

Partner

Benjamin Brown

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.