On June 21, 2011, the Fifth District Court of Appeal published part of its decision in Chawanakee Unified School Dist. v. County of Madera (2011) 196 Cal.App.4th 1016, directing the trial court to grant a petition for writ of mandate that compels Madera County to set aside its approval of a development project, and to revise the project’s EIR with regard to analysis of indirect environmental impacts on the non-school physical environment. The court concluded that Government Code section 65996, subdivision (a), as amended by Senate Bill 50 (SB 50) in 1998, only excuses direct impacts on school facilities and buildings from being considered and mitigated in an EIR. Therefore, a project’s indirect impacts on traffic, air quality, and noise levels related to school attendance or construction of school facilities must be considered and mitigated in an EIR.

In 2006, Tesoro Viejo, Inc., proposed developing 1,574 acres in Madera County to include a mix of residential, commercial, and light industrial uses. In 2008, the County approved the final EIR for the project, after receiving extensive comments from the Chawanakee Unified School District. In 2009, the school district filed a petition for writ of mandate alleging, among other things, that the county’s approval of the EIR failed to comply with CEQA. The trial court denied the school district’s petition, and the school district appealed to the Fifth District.

In the unpublished portion of the opinion, the court discussed the facts and proceedings of the case, concluded the CEQA claim had merit, and concluded that the project’s specific plan did not violate the Planning and Zoning Law by being inconsistent with the county’s general plan.

In the published portion of the opinion, the court addressed the effect of Government Code section 65996, subdivision (a), on CEQA requirements for an EIR. The court started by reviewing the events leading up to SB 50. In the early 1980s, CEQA case law established that impacts of development projects leading to increased school enrollment must be mitigated. In 1986, the California legislature enacted a statutory scheme, including former section 65996, that allowed school districts to impose capped fees on new developments to fund the construction of school facilities. These capped school facilities fees were established as the sole mitigation measure local agencies could impose on a development project. Subsequently, in Mira Development Corp. v. City of San Diego (1988) 205 Cal.App.3d 1201, and cases following Mira, the courts of appeal held that former Section 65996’s limitations on fees and mitigation only applied to adjudicative decisions of local governments, such as the approval of projects and the issuance of building permits. In 1998, the Legislature passed SB 50 to overturn Mira and its progeny by: (1) providing a cap on the amount of fees or other requirements that can be imposed on new developments to fund construction of school facilities; (2) removing from local agencies the authority to refuse to approve legislative or adjudicative acts on the basis of inadequate school facilities or a developer’s unwillingness to pay more than the capped fee amounts; and (3) limiting mitigation measures that can be required under CEQA to payment of capped school facilities fees, and finding such payment to be full and complete school facilities mitigation.

The court next turned to the statutory text. Before SB 50 was passed, section 65996(a) provided that certain statutory provisions, such as development fees, were “the exclusive methods of mitigating environmental effects related to the adequacy of school facilities when considering the approval or the establishment of conditions for the approval of a development project . . . .” After SB 50 was passed, section 65996(a) was amended to provide that certain statutory provisions “shall be the exclusive methods 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 development projects. The court noted that this amendment resulted in four textual changes, two of which were especially significant. First, the court concluded that the inclusion of the word “considering” meant “to view attentively, examine carefully, and study.” Therefore, section 65996(a) excludes the need for an EIR to examine and study impacts on school facilities in a description and analysis section of the EIR. Second, the court found that the substitution of “on” for “related to” narrowed the statute and limited the types of impacts that are excused from consideration and mitigation to physical changes to school grounds, school buildings, and school facilities. Therefore, under section 65996, impacts on traffic related to school attendance were not impacts on school facilities, and were not excused from mitigation requirements. Similarly, the court held that an EIR should consider and mitigate indirect impacts to the non-school physical environment caused by the construction of school facilities, such as impacts on air quality and noise levels.