Court Confirms That Calculation of Level 1 Developer Fees for Apartment Buildings Includes Interior Common Areas

April 2018
Number 16

A California court has confirmed that school districts are authorized to assess Level 1 developer fees against interior common areas of apartment buildings, including hallways and walkways.

School districts have received pushback from developers regarding whether “assessable space” includes interior common areas. With its decision in 1901 First Street Owner, LLC v. Tustin Unified School District, the court has provided districts with legal authority for imposing fees on such space. The court expressly concluded that its analysis is specific to Level 1 developer fees, and not Level 2 or 3 developer fees, which receive separate statutory treatment in the Government Code.

Developer Fees in California Law

School districts are authorized to levy developer fees against residential construction within their boundaries to fund school facilities. Level 1 fees are charged per square foot of “assessable space,” including “all of the square footage within the perimeter of a residential structure.” (Gov. Code, § 65995.) The building department of the city or county issuing the building permit for residential construction is required to calculate Level 1 fees.

Background

In 1901 First Street Owner, LLC v. Tustin Unified School District, a developer of a residential apartment building challenged the city’s calculation of Level 1 developer fees to be paid to the Tustin Unified School District. The city excluded interior common areas from its initial fee calculation, but recalculated the fees when the District objected. The developer objected to this later fee calculation and filed suit.

The developer argued that only individual apartment units, and not interior common areas-including hallways, storage rooms, mechanical rooms, fitness centers, and lounges-could constitute “assessable space . . . within the perimeter of a residential structure” within the meaning of Government Code section 65995(b)(1). The developer relied on section 65995’s indication that a city or county should calculate the space within the perimeter of a structure based on the city’s or county’s “standard practice” for calculating perimeters, and claimed that the city was correct in excluding interior common areas in its calculation. Thus, the developer contended that the calculation of Level 1 fees should exclude interior common areas. The district disputed such exclusion, taking the position that that the city’s calculation correctly assessed the interior common areas along with the individual apartment units.

The court agreed with the district and confirmed that “assessable space” includes interior common areas. The court noted that the statute explicitly lists examples of exterior areas and notably excludes interior common areas from the list. Aside from walkways, the exterior areas listed were typically located at or near the periphery of a residential structure. Therefore, a “walkway” under the statute means an internal walkway and not an interior hallway.

Additionally, the court distinguished the meaning of “standard practice” under Government Code section 65995(b)(1) from the developer’s argument that the city’s “standard practice” was to exclude interior common areas from the calculation. The court stated that, under the statute, “standard practice” meant the city’s calculation of square footage “within the perimeter of a residential structure,” including interior common areas.

Takeaways

In an environment where courts have issued several developer-friendly decisions in recent years, this case can be viewed as good news for school districts. The results of 1901 First Street confirm the position taken by many of our school district clients that interior common areas are properly included in the calculation of Level 1 fees.

As of January 24, 2018, school districts may charge up to $3.79 per square foot of residential development. School districts should ensure that cities calculate Level 1 fees based on the square footage of both individual apartment units and interior common areas.

Lozano Smith’s Developer Fee Handbook addresses imposition of developer fees and related procedures. School districts that have not previously ordered the Handbook or need replacement or additional copies can order the Handbook here or by contacting Client Services at clientservices@lozanosmith.comor (800) 445-9430.

If you have any questions about the court’s ruling 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. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Kelly M. Rem

Partner

Lauren Kawano

Associate

©2017 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.

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Local Agencies May Enact Presentation Requirements for Childhood Sexual Abuse Claims, Court Rules

April 2018
Number 15

The Fifth District Court of Appeal’s opinion in Big Oak Flat-Groveland Unified School District v. Superior Court holds, for the first time, that local agencies may enact local claims procedures under the Government Claims Act which require the submission of claims regarding childhood sexual abuse, despite the general exemption of such claims from the Government Claims Act’s claim presentation requirements and the more forgiving statute of limitations which apply to such claims under the Code of Civil Procedure.

Lozano Smith Litigation Practice GroupCo-Chair Sloan Simmons represented the California School Boards Association (CSBA) and CSBA’s Education Legal Alliance as amicus curiae in this case.

Background

The case involved an alleged childhood sexual abuse victim, Jane Doe, who attempted to sue a school district without first presenting a claim for damages. Childhood sexual abuse claims are exempt from the Government Claims Act’s claim presentation requirements, and based on this exemption, the plaintiff did not present a claim to the district before commencing her lawsuit. The district claimed the lawsuit was barred by the plaintiff’s failure to follow its local claim presentation policy, which the district said it was permitted to establish under a separate provision of the Act. The district argued that despite the Act’s exceptions under Government Code section 905, the plaintiff was still required to present a claim to the district due to the local policy adopted by the district under Government Code section 935.

The appellate court sided with the district, holding that local entities can prescribe their own presentation requirements for exempt claims as long as the local claim presentation period is no shorter than six months. Since the district maintained a local policy prescribing a presentation period of six months after accrual of the cause of action for all exempt claims and the plaintiff did not present her claim to the district within that time period, her suit was barred for failing to comply with the local requirements.

Takeaways

The court’s opinion affirms the underlying purpose for the Government Claims Act: allowing public entities to investigate and remedy harm before litigation ensues and to create internal protections that will prevent future harm. The opinion also serves the public policy that limited public resources should not be spent on litigation that could be avoided, and that public agencies make the best use of their limited resources when they can plan their budgets in advance.

Local public agencies should consider adopting local policies that address exempt claims. For school districts and county offices of education, CSBA’s model Board Policy and Administrative Regulation 3320 contain optional policy language on point. Lozano Smith’s Litigation Practice Group also offers its Government Claims Handbook as a resource for addressing claims under the Act.

The plaintiff in the case recently petitioned the California Supreme Court to review the appellate court’s opinion. The Supreme Court will determine whether to grant review in the coming months.

If you have any questions regarding theBig Oak Flat-Groveland Unified School District opinion, the Government Claims Act, or the adoption of local claim presentation requirements, please contact the authors of this Client News brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

©2017 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.

Colleges Have a Duty to Warn or Protect Students from Foreseeable Violence

April 2018
Number 14

Colleges have a legal duty, under certain circumstances, to protect their students from or warn them about foreseeable violence in the classroom or during curricular activities, the California Supreme Court has ruled.

In The Regents of the University of California, et al., v. Superior Court of Los Angeles County, the Court considered whether colleges owe a duty of care to their students to protect them from or warn them about foreseeable violence. This question is critical to determining whether a college acted in a negligent manner when it failed to warn or protect students from foreseeable violence.

Negligence claims require the existence of an underlying duty of care owed the injured party. Where there is no duty of care on the college’s part, a college cannot be held liable for negligence.

Background

A student who displayed increasingly hallucinatory, erratic, and threatening behavior stabbed a fellow student during a chemistry lab. Over the course of that year, the university, which was aware of the student’s psychological issues, had moved him to a different dormitory and then a single room before expelling him from student housing. The university also provided counseling services, urged the student to submit to voluntary hospitalization, concluded he did not meet the criteria for an involuntary hold, and ordered him to return to counseling services. The members of the university’s consultation and response team monitored the student’s behavior and became increasingly concerned when he identified particular students as threats. The day before the stabbing the team scheduled a meeting with the student, but he failed to attend. The university did not otherwise protect or warn students regarding the potential threats.

The Court concluded that colleges have a duty to their students to warn or protect them from foreseeable harm, which arises from the special relationship that exists between the college and its students. The Court opined the college environment is unique. A college provides educational services and community, often at a point in students’ lives when they are learning to navigate the world as adults and are vulnerable and dependent on the college for a safe environment. Colleges have superior control over the environment and also, the ability to protect students by imposing rules, disciplining students, and employing resident advisers, mental health counselors, and campus police. There is also a limited community to whom the duty is owed, namely students and not the public at large. These characteristics all fit within the paradigm of a special relationship between the parties which establishes a duty to warn or protect from foreseeable harm.

A college’s duty to warn and protect students is limited, however, and extends only to activities where the college has some control. The Supreme Court concluded it is reasonable for students to expect that a college will provide some measure of safety in the classroom, and more broadly, in curricular activities.

The Court emphasized that the existence of a duty of care is not equivalent to liability, and that not all violence on campuses can be prevented. Colleges do have a duty to act with reasonable care, however, when aware of a foreseeable threat of violence in a curricular setting.

The Court did not provide any guidance regarding what a college must do to meet this duty of care. Having settled that colleges generally owe a limited duty of care to their students, the case was remanded to the Court of Appeal to determine whether the university had breached its duty of care in this case or was otherwise immune from liability. Thus, whether the university’s response failed to meet its duty to warn or protect, and guidance on what the university should have done and when, remains to be determined by the Court of Appeal.

Takeaways

If community college employees acting within the scope of their employment become aware of student behavioral issues that could rise to the level of foreseeable harm, there is a duty of care which may result in liability if the community college fails to warn or protect students. Community colleges should ensure there are communication channels in place to alert employees responsible for assessing and responding to threatening behavior, and should also review their behavioral intervention protocols.

Though Regents is specific to the college environment, a court could adopt a similar viewpoint toward a school district and its minor students. For more specific analysis in the school district context, contact legal counsel.

If you have any questions about this case or about community colleges’ or school districts’ duty of care to students 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Michelle C. Cannon

Partner

Carrie M. Rasmussen

Senior Counsel

©2017 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.

Charter Schools Must Obtain Separate Approvals for New Schools, Renewals, and Revisions, Court Rules

March 2018
Number 10

A California appellate court has published a decision affirming that charter schools must obtain separate approvals for new initial petitions, charter renewals, and material revisions to charter school petitions. InToday’s Fresh Start Charter School v. Inglewood Unified School District, et al. (Feb. 7, 2018, Case No. B280986) ___ Cal.App.5th ___, the Second District Court of Appeal issued a published decision, concluding that:

(1) Charter schools may not use a renewal petition to add a charter school location not previously authorized by its initial petition; and

(2) A material revision to a charter school’s initial petition is not deemed approved by combining with a renewal petition that became authorized by the chartering authority’s failure to act on the renewal petition within the statutory 60-day limit.

Lozano Smith’s litigation team of Erin M. Hamor, Megan Macy, and Sloan R. Simmons supported the California School Boards Association’s Education Legal Alliance by filing an amicus curiae brief in support of the Inglewood Unified School District.

Background

Today’s Fresh Start Charter School submitted a renewal petition to its authorizer, the Inglewood Unified School District-entitled “Renewal Petition and Material Revision”-seeking renewal of its existing charter and proposing to add a new charter school facility outside the boundaries of the district. When the district failed to act on the renewal petition within the statutory 60-day limit, the charter school argued that both the renewal petition and the material revision to approve the new location had been approved by operation of law. The Court of Appeal rejected the charter school’s argument and fully affirmed the judgment of the trial court.

Throughout the opinion, the court highlighted the three distinct categories where a charter school must seek approval of its chartering school district: (1) initial petitions for establishment of a charter school; (2) petitions to renew an existing charter; and (3) petitions for approval of a material revision to an existing charter. The court emphasized that each type of petition is governed by a separate set of requirements and timelines. As a result, when a charter school location has not previously been approved under an initial petition, the material revision process is the appropriate mechanism to add the new location.

Takeaways

This case is important for charter school authorizers because it re-emphasizes that the three separate categories of charter school petitions-initial approval, renewal, and approval of a material revision-should be treated separately according to their distinct processes, even if presented in a combined petition.

This decision also makes clear that charter schools may not use renewal petitions to circumvent geographic location requirements of the Charter Schools Act-a practice some charter authorizers report has been on therise.

For more information about this case or about charter schools 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 visit ourwebsite, follow us onFacebook orTwitter or download our Client News Brief App.

Written by:

Edward J. Sklar

Partner

Ryan. P Tung

Associate

Alyse Pacheco

Associate

©2017 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.

Student Walkouts: What Your District Needs to Know

February 2018
Number 7

This Client News Brief was updated on March 6, 2018.

UPDATE: California Department of Education Issues Guidance

The California Department of Education (CDE) and State Superintendent of Public Instruction Tom Torlakson released guidance on March 2 regarding student walkouts. Echoing the suggestions above, the CDE calls for schools to provide outlets for student political expression through classroom or school-wide discussions, as well as for proactive discussion with students and the school community regarding the consequences of a walkout. A walkout-unless students miss the entire instructional day-is also “unlikely” to lead to loss of funding based on Average Daily Attendance (ADA). The guidance also notes that schools may not recover a loss of funds related to walkouts through the emergency ADA (J13-A) approval process.

Original News Brief – Published Feb. 28, 2018.

The mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla. has intensified the nationwide debate about gun control and school safety. Inspired by the activism of the Parkland survivors, students nationwide are engaging in walkouts and protests. Some have already taken place, while other, larger-scale walkouts are planned for March 14 and April 20. Reportedly, there are even plans for a walkout that will last until Congress acts on gun control legislation. The walkouts revive the question of whether student walkouts are subject to regulation by school officials.

In short, students have free speech rights at school, but school districts are permitted to regulate student conduct in violation of school attendance policies, including students’ unexcused absences for participation in student walkouts. School officials are best served to consider measures that will minimize the impact of student walkouts on student instruction and the educational environment, and may also wish to consider alternatives through which students can express their political and social views on important public issues.

Student Free Speech Rights vs. Unexcused Absences

Schools have long been a forum for political activism, and the courts have laid down clear rules for school districts seeking to govern it. InTinker v. Des Moines, the United States Supreme Court held that speech is allowed so long as it does not disrupt the educational environment. More recently, the Ninth Circuit Court of Appeals, in decidingCorales v. Bennett, held that school absences related to walkouts must be addressed in the same way as any other unexcused absence. ( See Lozano Smith 2009 Client News Brief No. 31.) Corales involved school officials’ response to student walkouts in protest of pending immigration reform measures in California. The court ruled in Corales that a school’s prohibition against student walkouts because they will result in student truancy is regulation of student conduct, not student speech. In other words, regardless of the
political nature or subject matter motivating student walkouts or participation in public rallies, a school’s anti-truancy policies and the regulation of those policies under applicable Education Code provisions is aimed not at the truant student’s speech activities, but the student’s required attendance at school absent an excused absence. As a result, the court held that students do not have a free speech right to leave school to participate in protests, and absences for this reason are not normally identified as excused.

Responding to and Minimizing the Impact of a Walkout

In anticipation of planned protests and walkouts, school districts may wish to consider options to minimize disruption and ensure positive student and community relations. This could include involving cities, law enforcement, and other relevant agencies in planning meetings to address walkout or protest-related concerns. Consistent with Corales, school districts may mark student absences as “unexcused” when a student participates in a walkout. Regardless of the position a district or its governing board takes on the issue of guns, if a district is considering marking student absences for participation in the anticipated walkouts “excused,” such districts should take caution: To account for these anticipated walkouts as excused absences, but not take the same approach (in the past or in the future) when students participate in walkouts regarding other issues, may likely raise viewpoint discrimination concerns, i.e., endorsing one political position but not another.

Those school districts intending to treat student absences for any walkouts as unexcused should consider reminding students and parents in advance that attendance at school is mandatory and is only excused for reasons set forth in the district’s Board Policies and Regulations, as allowed under Education Code section 48205. This may help to ensure that students and parents have a clear picture that absences for the purpose of attending a walkout will not be excused.

Discussing Controversial Issues at School

Finally, apart from the rule and guidelines expressed by the court inCorales, student reaction and expression to the most recent school shooting and any related discussion regarding gun control may present school officials and instructors the opportunity to remind students of the importance of free speech rights and of respecting the views of those with whom they disagree. To that end, school districts may wish to consider the California School Board Association’s model Board Policy 6144, entitled “Controversial Issues,” which many California school districts maintain. That model policy provides a sound framework for appropriately addressing controversial issues with students in the classroom. Districts may also wish to consider planning community or school forums to allow for such discussions by students.

If you have any questions about student walkouts, or student free speech rights in general, please contact an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App
.

Written by:

Sloan R. Simmons

Partner

Aimee Perry

Senior Counsel

Tilman A. Heyer

Associate

©2017 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.

Student Athlete’s Right to Kneel during National Anthem Likely Protected by the First Amendment

January 2018
Number 2

A federal district court in California has granted a preliminary injunction blocking a school district’s policy requiring student athletes to stand during the national anthem at school sporting events.

In V.A. v. San Pasqual Valley Unified School District, the Southern District of California court ruled that kneeling in silent protest is a form of student symbolic speech protected under the First Amendment.

Background

During the first game of the 2017 varsity football season, which was played at the plaintiff student’s school, high school senior V.A. performed a silent protest by kneeling during the national anthem. After doing the same at the team’s second game, which was played at an Arizona high school, students from the opposing team’s school approached students from plaintiff’s school, made racial slurs, threatened to force plaintiff to stand, and sprayed water on the students, striking a nearby cheerleader. After receiving feedback from the community, parents and staff that included concerns about safety, the superintendent issued a memorandum to all of the district’s coaches with a new directive requiring student athletes to stand during the national anthem. The memorandum added that kneeling, sitting or any similar form of political protest could result in removal from the team and from subsequent athletic teams for the remainder of the school year.

The court granted a preliminary injunction in the student’s favor. In doing so, it relied on the U.S. Supreme Court’s preeminent student speech opinion,Tinker v. Des Moines Independent Community School District, which established the principle that students do not shed their free speech rights in school and may exercise such rights absent a material and substantial disruption to the educational environment. Like the students inTinker, who wore black armbands in silent protest of the Vietnam War, the student plaintiff’s silent kneeling did not rise to a level of material interference with or substantial disruption of school activities. The court explained that any threat to student safety was diminished by the district’s agreement to no longer play the Arizona school in sports.

Takeaways

While the preliminary injunction was issued by a federal district court and is thus not binding on all California school districts, the court’s reasoned analysis appears well supported by legal authority and reinforces the idea that, when it comes to student free speech, a school has less deference to restrict speech that expresses a student’s personal opinion. Notably, the V.A. ruling is the first of its kind with regard to K-12 students since the recent spate of silent protests that players have made during professional and college sporting events.

For more information about this ruling or on addressing student free speech rights in general, please contact an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

©2017 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.

Schools May Discipline Students for “Liking” Offensive, Targeted Social Media Posts

December 2017
Number 87

December 2017
Number 87

A federal district court has ruled that schools may discipline students for “liking” offensive, targeted social media posts.

In Shen v. Albany Unified School District, a Northern California district court concluded that a school could discipline students for liking or for writing approving comments on racist and offensive social media posts targeted at other students, even if the posts were created off campus. However, the court also ruled that the school’s additional decisions to discipline other students who had simply followed the offensive social media account or had approved of more generally offensive posts not directed at any particular student were violations of those students’ free speech rights.

The Shen case is significant because it is one of the first cases coming out of California addressing a school’s ability to discipline students for off-campus expression on social media.

School’s Right to Regulate Off-Campus Speech

Not all off-campus speech is beyond the reach of school officials. In order to discipline (or otherwise regulate) a student for off-campus speech, the speech must meet the requirements of the off-campus speech test. That is, the speech must: (1) be tied closely enough (have some nexus) to the school, or it must be reasonably foreseeable that the off-campus speech would reach the school; and (2) substantially disrupt or materially interfere with the school environment or activities,or it must be reasonable to forecast that it will cause a substantial disruption of or material interference with the school environment or activities, or collide with the rights of students to be left alone in the school environment.

Each of these factors requires careful analysis, and school administrators should exercise caution and investigate thoroughly before proceeding with discipline. While every case is fact-specific, the district court’s analysis in Shen v. Albany Unified School District provides a framework for approaching these issues.

In Shen, a student was expelled after posting racist and derogatory content on an Instagram account, including images of nooses drawn around the necks of an African-American student and an African-American basketball coach. Even though the posts were made off campus, the court determined that because they targeted individual and identifiable students, were readily visible to other students, depicted school activities and responded to events that took place at school, the posts therefore had a close relationship to the school. Based on these factors, the court determined that administrators could reasonably expect the posts would reach the school because some of the targeted students would be affected by the content.

The offensive content was also found to have immediately caused a “substantial disruption.” After learning of the posts, students gathered in a hallway during the school day, intensely talking, crying, and yelling about the posts. Mental health counselors had to be called in to calm students down, classroom instruction was halted to discuss the posts, and several students struggled to attend school or perform schoolwork as a result of the posts. Based on these factors, the court determined that the district’s expulsion of the student who created the posts was appropriate.

Turning its analysis to the students who were suspended for liking and commenting in approval of the posts targeting other students, the court found that their behavior “meaningfully contributed” to the campus disruptions, justifying the discipline and regulation of speech. Online posts that denigrate a student’s race, ethnicity or physical appearance or that threaten violence-and any likes and comments expressly supporting those posts-interfere with a student’s right to be left alone, the court ruled.

Notably, the court reached a different conclusion regarding likes and comments favoring generally offensive, racist, or hateful speech that was not directed toward a specific student. While unsettling, this type of speech is protected under the First Amendment and does not constitute harassment or bullying, the court said. Further, disciplining the student who only followed the social media account, but did not like or comment in support of the offensive content, violated their free speech rights because the act of following is “completely devoid of any affirmative speech.”

Takeaways

While the Shen’s summary judgment order is issued by a federal district court and thus not controlling in California state courts or in other district courts throughout the state, it is one of the first legal opinions analyzing student speech in the context of social media, including reactions to social media posts and following social media accounts. It will, therefore, likely have persuasive effect, if and when relied upon by federal and state courts in California.

For more information regarding the discipline of students for off-campus, online speech, or about student free speech rights 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah L. Garcia

Partner

Joshua Whiteside

Associate

©2017 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.