HomeMy WebLinkAbout2021-07-08; Carlsbad Unified School District -Improvement Projects at Kelly Elementary School and Hope Elementary School (District 2); Barberio, GaryTo the memb~rs of th~:
CITYCOUN~ /
Date}--<?"· 21 cA ........... CC_
\'CM ✓ ACM ✓ D(;;M (3) ~
July 8, 2021
Council Memorandum
To: Honorable Mayor Hall and Members of the City Council
From: Gary Barberio, Deputy City Manager, Community Services
Jeff Murphy, Community Development Director
Via: ~eoff Patnoe, Assistant City Manager @,,
{city of
Carlsbad
Memo ID# 2021138
Re: Carlsbad Unified School District -Improvement Projects at Kelly Elementary
School and Hope Elementary School (District 2)
This memorandum provides updated information on two improvement projects being
pursued by the Carlsbad Unified School District (CUSD) at Kelly Elementary School, located at
4885 Kelly Drive, and Hope Elementary School, located at 3010 Tamarack Avenue.
Background
As reflected in the City Council Memorandum dated Sept. 25, 2020 (Attachment A), grading,
drainage and road improvements require appropriate permits from the city before work can
commence. Despite city staff repeatedly advising the CUSD of this requirement, the CUSD
elected to proceed with grading operations without the benefit of these permits. This
resulted in the city issuing stop work orders at both the Kelly and Hope Elementary School
sites, followed by a series of citations being issued against the CUSD and its contractor for
failure to comply with said stop work order and grading without a permit. The CUSD
appealed these citations, which were ultimately upheld by an Administrative Hearing Officer
in December 2020.
Late last year, the CUSD Project Manager (Mr. Derrick Anderson) and the CUSD
representatives agreed to submit the required plans to secure the necessary city grading
permits. City staff in turn agreed to expedite their review.
Discussion
Kelly Elementary School
Regarding the Kelly Elementary School site, the city issued the CUSD a grading permit on
June 16, 2021. While the CUSD Project Manager did not provide the city with a construction
schedule, grading operations are currently underway.
Hope Elementary School
Regarding the Hope Elementary School site, the first submittal of the grading plans was
received on Dec. 9, 2020. The city's comments were provided on Jan . 8, 2021, where
significant issues and concerns were raised regarding site drainage and compliance with the
Regional Water Quality Control Board (RWQCB) stormwater standards and requirements.
Council Memo -CUSD Improvement Projects at Kelly and Hope Elementary Schools
July 8, 2021
Page 2
Following the city's comment letter, staff periodically responded to questions from the CUSD
development team regarding various stormwater and engineering requirements.
In June 2021, staff received an email from the CUSD Project Manager requesting permission
to initiate the installation of certain stormwater improvements. Considering that,the city did
not have an approved grading plan and had not received revised plans from the applicant
since their initial grading plan submittal in December 2020, staff denied the request and
inquired as to the status of the grading permit resubmittal.
On July 6, 2021, the city received the CUSD's second grading plan submittal, but after a
cursory review staff noted several fundamental deficiencies in the plans and reports. Some
of the more significant deficiencies included the following.
• The stormwater quality management plan was not prepared in accordance with the
city's BMP Design Manual.
• The drainage plan did not have supporting hydraulic calculations to ensure that the
system can handle stormflows.
• The grading plans are missing basic elements such as invert elevations, finished grade
elevations and outfall locations for storm drains.
• The stormwater quality management plan is missing several calculations and sizing
worksheets.
Due to the number and severity of the deficiencies, the submittal was not accepted. Staff
informed the CUSD Project Manager of the reasons and provided him with a list of
consultants that have the requisite expertise and experience in drainage and stormwater
quality in the area that could help them prepare a submittal that would meet city and
RWQCB standards. City staff also offered to meet with the Project Manager and his engineer
to further discuss the issues.
The site is still operating under the "stop work" order that was issued for the unpermitted
grading activity last year. Should the CUSD violate that order, the city will reinitiate issuance
of administrative citations.
Next Steps
Staff will continue to encourage the CUSD representatives to consult with an engineering
firm familiar with the stormwater codes and standards for this region and will continue to
work with the CUSD representatives to address issues as well as expedite plan review, once a
complete submittal is provided.
Attachment: A. City Council Memorandum, dated Sept. 25, 2020
Council Memo -CUSD Improvement Projects at Kelly and Hope Elementary Schools
July 8, 2021
Page 3
cc: Scott Chadwick, City Manager
Celia Brewer, City Attorney
Ron Kemp, Assistant City Attorney
Marissa Kawecki, Assistant City Attorney
Paz Gomez, Deputy City Manager, Public Works
Kristina Ray, Communication & Engagement Director
Jason Geldert, Engineering Manager
Babaq Taj, Engineering Manager
To the members of the:
. I . COUNCIL
Date 'l i? 1DCA _J_ CC / .
CM ACM _L DCM (3) __y_
Sept. 25, 2020
Council Memorandum
To: Honorable Mayor Hall and Members of the ch:y Council
From: Jeff Murphy, Community Development Director
Via: Geoff Patnoe, Assistant City Manage~ ·
· Attachment A
~ ' · ~Cityof
Carlsbad
· Memo ID #2020200
· Gary Barberio, Deputy City Manager,~ un lty Services
Re: . (UPDATED) Carlsbad Unified School . t -Improvement Projects at Kelly
Elementary .School and Hope Elementary School
This memorandum is an update on the city's late~t enforcement actions against the Carlsbad
Unified SchooJ District {CUSD) and the contractors performing unpermitted grading _activities
occurring at the Kelly Elementary School (4885 Kelly Drive) and Hope Elementary School
(3010 Tamarack Avenue).
Background
On September 24, 2020, staff issued a Council Memorandum (Attachment 1) advising the
City Council of the unpermitted grading activities currently being conducted on the Kelly
Elementary School and Hope Elementary School sites as well a·s background on our
interaction with the CUSD. This memo rs intended to provide an update on our ongoing
enforcement actions.
Discussion
Around 1:00 pm yesterday, city staff issued a Notice of Violation (NOV) to the job
superintendent at the Kelly Elementary School site· directingthem again to cease grading
operations until a grading permit can be obtained. Note that this NOV was issued due to
non-compliance with the city's stop work order issued on September 23, 2020. The NOV
specified three separate municipal code.violations including: 1) unpermitted grading and
excavation, 2) unlawful grading and erosion control r:ne~sures (stormwater), and, 3) public .
nuisa·nce based on the extensive and serious nature of the grading violations. The NOV gave
· the superintendent two hours to comply due to the gravity of the offense and the pri9r
notice via the stop work order. At around 3:30 pm yesterday, city inspectors confirmed that
grading operations were continuing in violation of the stop work order and NOV. In
response, staff issued the job superjntendent ari Administrative Citation in an amount of
$300 ($100 for each violation).
This morning, city inspectors again Vl(itnessed grading activities and issued another
. Administrative Citation in the amount of $600 ($200 for each violation). If grading
inspections are witnessed a third (and any subsequent) day, an Administrative Citation will
be issued in the amount of $1,500 ($500 for each violation, the maximum allowed per
Cou.ncil Memo -CUSD Improvement Projects at Kelly and Hope Elementary Schools
Sept. 25, 2020 ·
Page 2
violation under the code). Staff intends to continue citing the violations until compliance is
achieved and/or until _other enforcement remedies prove effective.
Earlier today, staff received a timetable from the CUSD outlining their interactions with city
staff, which staff is currently reviewing. Upon cursory-review, their timetable recognizes that
the need for a grading permit was an item of discussion dating back to January of this year.
Next Steps
Working with the City Attorney's Office, staff has also prepared an NOV that will be issued to
CUSD. While staff initially tried to avoid taking enforcement actidn against the district as the
property owner, it appears that this may be the only way to effectively draw attention to the
· unpermitted activities of concern and immediately stop work pending a properly issued
grading permit. We will attempt to hand-serve the district later today with a short
compliance date. If the hand-service is unsuccessful, the alternative under our code is to post
and mail (via certified mail). If that is the case, we will have to allow some lag time before
issuing citations to the schooi district, until we can confirm it has in fact received notice of.
the NOV. However, because the contractor is the one performing the unpermitted grading
activities and has already received notice of the violation (and subsequent citations), staff
will continue to i~sue frequent citations to_ the job superintendent on a separate but parallel
time schedule.
Staff is also attempting to reach the CUSD. Board and CA Division of the State Architect (DSA)
in an attempt to obtain compliance with our orders. The City Attorney's Office is still
researching the extent to which these entities might have official enforcement authority or
oversight over a school construction project involving local municipal code violations.
Our goal in this effort is not to be vindictive or punitive, but to ensure compliance with
established regulations that are in place to protect public health, safety and general welfare
of our residents.
Attachment: A. Council Memo Septembe~ 24, 2020
cc: Scott Chadwick, City Manager
Celia Brewer, City Attorney
Ron Kemp,-Assistant City Attorney
Paz Gomez, Deputy City Manager, Public Works
Kristina Ray, Communication &. Engagement Director
Mike Peterson, Assistant Community Development Director
Jason Geldert, Engineering Manager
Babaq Taj, Engineering Manager
4·
to the mer'i"ll,:iers of the:
f1COUNCIL
Date 9 ::vCA .f_ CC ✓ .
CM__j/__ACM.::i,_DCM {3) V
Sept. 24, 2020
Council Memorandum .
To:
. Frqm:-
Honorable Mayor Hall i;lnd Members of the City Cquncil
Jeff Murphy, Comriilinity Development 0irector
· {"Cityof
Carlsbad
Memo ID #2020198
Via:
tary B-arperlo, Deputy City Manager, C~iJnity Services
Geoff Patnoe, Assista11t City Mimi;lger cg__ · .
Re: C:arl$bad ·unified School District"'-Improvement Projects ~t Kelly Element,u:v
Sch9ol and Hope Elementary School
This memorandum provides information oh two imprbvenient projects being pursued by the
Carlsbad Unified Schoof District (CUSD.) at °Kelly Elementary Sthooi (48$5 Keliy Drive) and
Hope Elementary $chool (3010 Tamarack Avehue).
Sackgroun~ .
PLirsqant to the Californ/a EdL!cation Code §17280(a)(1); the de$ign and constru~tion. Qf
schooJ s_tructures mu·st be done in 9c;~o-rdance with t~e standards established by the
California Division ofthe·State Architect (DSA),; lot~l.jurisdictirinsdo not have land u:se
at;ithority . .ovet buildihg.constructiot1 and tlie'refore tanliotrequire a discretionary ot
ministerial p~t~itfor structural improvements cenduqed 6."n ~~hocil sites\ $Udt·as K-e11y anc:t
Hope Eiemehtaty,Sthhots,. ·
Ho.wever, ~overn.men:t Cod~ §53097 states that a school disVict is reql!ired to comply With
city regulations affocting onsite· dra.inage, road conditions and gradi_ng. As such, schoot
districts that propose grading and road improvements. as part of their development project
must comply with local codes, including securlng <)ppropriate permits from the locai .
. jurisdictib"o; if r~quired. This issue has been previously Vetted wfrh th~ City Attorney's Office
(dating ba~k to 2008} and-was confirmed by the sti;lte !egislat.ure.' s legal coun.seJ {Legi.slatiVE~
~oun$_el aureau} in -~ Jetter dated Npv. i3, ZOiS (Atti;1c;hment A).
· DfscLissJon
Late last year~ staff was approached by representatives from CUSD on p.lans=to modernize
· Kelly ElementarySchool. Based on the scope of the. work ~.escribe_d; staff advised the
repr-~sentatives in Jan·uary of the_ need tcr secure, a grading permit. As part of that pern1it, a
storm Wa~er Pollution Prevehtio.n Pia_,; ·and Sto~m Water Ql!ality Management Plan With
appropriate B.est Mana~ern.~11t Practice~liVould );:le requir~d, consistent with the
1 Non-school sit~s, ~uch as distritt-adn:i1nistratiVe offli:es, do not fall under the education code arid are required
to comply with local building cod.es ahd development stand.an;ls.
Attachment
Council Memo-CUSD Improvement Projects at Kelly and Hope Elementary Schools
Sept. 24, 2020
Page 2
requirement~ set forth under city code and the Region<;1I Water Quality Control Board
(RWQCB).
City staff had subsequent meetings with the CUSD representative.who disagreed with the.
city's interpretation of the government code section. and felt that CUSD was not subject to
. local requirements. City staff m_ade repeated requests that CUSD provide ev1d_ence
supporting their position. -In the me;;mtime, in ~n effort to move the project forward, dty
staff recommended that CUSD proceed with filing an application: City staff offered that
should there be any duplication with state processes (i.e., construction bonding), we would
consider accepting state processing requirements to satisfy our submittal requirements, as
appropriate. · ·
To date; after roughly seven months, neither the requested supporting documentati~n, nor a
grading permit application have been filed. with the city. ·
On. Ju_ly 2!;3, 2020, the city received a call from the Carlsbad Municipal Water District about
gracling activities occurring at another school district site: Hope Elementary School. Upon
inspection, staff confirmed that unpermitted grading was occurring, and a Stop Work Order
was issued directing that all grading activities stop until proper permits were ~e.c_ured.
Following the Stop Work Order, on Sept. 17, 2020~ representatives of the Kelly Elementary
School design team met with city ~affwhere they-agreed to submit grading plans and a ·
grading permit application for the Kelly Efementary School project Repre_senfatives
anticipated that a forrnal.i3pplication would be filed in November 2020. It is the.city's
under~tanding that the Hope Elementary School project is being handled by another design
team. No date was identified for when a grading permit application would be filed for the
Hope Elementa_ry School project.
On Sept 23, 2020, the city.received a complaint frorn a resident living near l<elly Elementary
School complaining of du.st.and noise from grading operations being done on the property.
Upon inspection, city· staff.confirm~d that the grading being conducte~ required a grading
permit and. supsequent;ly issued a Stop Work Order. City staff is consuiting with the'City .
Attorney's. Office on .enforcement options, should. CUSD not respond to the city's Stop Work
Order.
Next St~ps
. Once grading p.lans/applicatioh$ are submltted, $1:aff hi;ts committed to an expedited review
and will ~c:ceptstate processing requirements to satisfy the city's local submittal ·
requirements, if determi_ned apP,ropriat~ .
. CUSD has requested that they be allowed to conduct limited grading operations while the
. plans are being prepared: Unfortunately, the city's codes do not allow for grading to occur
Without an _approved permit. Furthermore, should the city allow Unpermitted grading to
occur, Carls.bad would be in violation of the MS4 stormwater permit with the RWQCB,
exposing the city to a possible Notice of Violation and associated fines. While CUSD has
Council Memo-CUSD_ Improvement Projects at Kelly and Hope Elementary Schools
Sept. 24, 2020
Page3
indicated a wiilingness of indemnifylng the c;ity, be.cause the MS4 permit is issued to the city,
the city is ultimately responsible for any violations.of that permit.
Attachment: A. LCP Letter dated Nov.·13_ 2013
· cc: Sc:¢tt Chadwick, City Manager
Celia 13rewer, City Attorney
Ro·n K-emp,_Asslstant City Attorney
Paz Gomez, Deputy City Manager; Public Works
Kristina Ray, Communication & Engagement D.irect.or'
Mike Peterson, Assistant Community Devefopment Dfrector
. J.ason-Geldert, Engineering Mi:inager
e~baq Taj, ingineering Manager
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Honorable Scott Thomas Wille
Room 4153, State Capitol
/I TMDITJON OF.mUsltD UGAL 5£1\VJCE
TO TIIU CAI I FOR NIA lfGISLIITIJRE
LmtSIATIV£ COUNSEL DUREA1J
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l~Ttm-lcf WWW.J.f(il:ilATIV~CtiUNSf:l.C'.1\,CO\'
November 13, ~013
$cHOOL DISTRICTS; LOCAL ORDINANCES ;. #13276.58
Dear Mr, Willa
QUE~l'ION
Is tl:ie govetnirtg hoard of a school district required. to compiy wjth a dty or county
o·rqm;µice_ related to drai_nage, road irµpro.vements, ~r grading? ·
. OPINI<;>N.
With respect ~o ~ city or county · .orclinani::e that (i) regulates drainage
improvements and condition~, (2) regulates road iinptovements a_nd conditions, or
(3) requires the r~view and:appr<;ival ofgrad:lngplans, tb_~gd\iernirtg board of a schocil district
is required to comply with that C:>r'diQ;ince to th.e extent that the ord.in;mce relates to the
design and con,struction of onsite impx:ovemi;nts that ~ect drainage; road conditions, or
grading. ·
A.NA;LYSIS
State agencies, including school 'districts; h~ve immimity from local regulation
11unless the state, thr~ugh statute br provision of the Califcir?ia Constitution, has aortse11ted
to waive such_ immunity." (Laidlaw Waste System~) Ittc; v. Bay Cities Ser-.vices, Inc. (1996) 43
Cal.App.4th '630, 635.) The Legislarur~ has consented to waive the immunity of school
I '
Honorable ScottWilk -Requ.e_st i¥1321~58 -fage 2
district$ from iocal.regulation iri certain situations, :including the tjrcmnst~ces desc:ribed'in
Govenurtei:it Codt.se¢on 53097}
· Sectio,n 5309T address·es the qg,ty of, die gov er ping boar4 of a school !listrict to ..
tom ply with local ordinanc~&.f1;1gardmg:clr$age; ~da4s, and-grading,. :and. provi4¢f! 2f! follows:
•
11NQtwith~1;and,ii;ig :my other ptovfsfons ofrllis article, the govmJing board oj
-&.1 • ~choof disfr.Jct s1;aU coi1ip~ -with any dry or county-o.rdiiianc[ (1) r~guliiting drainage
itr,p,r,o·v_em~nts ai.id tonditi~ns, (2) ngul~ting r()ad: -imptiJ.veine11ts .and c/l_ilditions, or
· · (3JrfquiriiJg tbt review. anJ. approval of grading pl,ms as these ordinance provlsioiJS
relf!te;.to ib~ desig,i anJ Ci.111$.trll~ti~ft of onsite improvements w1,icr1 affect drainage, road
condltuii1s, or grading1 and shall give consideration to the specific requirements
3.11q. q;,~d,itions · pf city or-' county otdin:ances relating i:o the qesign llhd
con:strucdon of o$ite lllipt_ov.ements. ·If a school district · elec~ not tQ· comply
with the. feqiµrements of city o.r county ordinances relating to the design ind·
tortstructi~n of o£fsite improvements, the city or cou.nty-sha)l not be lia,ble-fot
-.µty injµries or for any d.amage-fo· property caused by the failure of the school
~trkt tc;, po111.ply with those orclinahtes/' (Emphasis addea)
. As indicated above, sec~io,;i: S.3097 i:equlr_ersch_o_ol4i$trkts fo c;c;utipiy ~ith, dty or
· counj;y .otc#nanc¢s · of thr.ee specIBc .kmds: ili:ose' .that regiilate . dt~fuage-:improvellltli~ .i~d
·co'P-4ition~~ tpci~~ that regulate r~acf ltr!-provements and coiiditiohs; and thos~ th# requ,il;e 1:h:e
te'iriew :µi.d: ~pproval ofgr~ding plans so long as those ordinance provisions rdate to the-design
and-cri>nst_m<#on of onsite improvements which affect c!.rl!inage, toad conditions, or grading •
. $ectl911. :53097-"l!-lso reqi:µres: s"i;hool districrs to give cbru;idetat/on to. the sp.egfk requii'.ernelit$
.and i!onditions· of city or county ordinances relating to. the design and construction of offsite
imptM~eµ~. . . _ . . . . _ _
"j:q_ :a&i::!;(t;Un th~ me:i.nhig q{ a statQ.te, we begin w:ith the fangu~ge in which the
statute. is framed; (i~r&: T'. v. Wor~n;en's Gomp,:4ppeaA Bd; (t974)):l, ¢~.~,d-4j4; 438/ 1/isalia
. Si);ooi.tiis( V, Workers' Comp, Appeals Bd. (1995) 4P Ca:I;;\pp_,4th 12i-~, :t.iio.) Although
se¢.tiQn .53097 requires a school district :to comply irii:h citf pr-:counjy ~td.inances ~f three
kii14s, the ·phrase "as rh,:~$~ 9fclinance provisions i:elate to the J¢s1gii and construct;10n of
on:s_ite i.t:iipr◊vements. whkh affect dramage, road conditions, or :grading;; qualifies that ·
reqti,irefuerit P.Y iiid.ica.Hng: that $Orne provisions are n,9t .cover.ed by .qi:i,r; te.qllir.em~nt--'--'
nr:itneiy, those· that do not ~~~~ to o;nsite improvements< aff~ctuig. dr~inage, road" t~nditions,
Qr gta,ding. However, .bec~use that phrase (hereafter the qu.alifyi1;1g-phr~e) follows the
eriU:trt!!t:i.tfon of the three kinds of.\;"t4,inances, neither the structure of-the S"i!nterice. hot _i¢
, 1 All further section references a:re to. the Govefomeirt Cqcle,: unless otherwise
indicated. "Sectibns $3b91 art cf ~)094 also w;u:ve a s~hool district's .&nm unity from local regµlarion
'under pa:rticular cii'i:wnstances that are rtQt: reley:µit to OUL' analysis. . .
Honorable Scott Wilk -Request #1327658 -Page 3
punctµation -4J.dicates whether the qualifying phrase refers to. only those ordinances requiring
the review and approval ofgradingplans or to ordinances of all three kinds;
Because the language of section 53097 is ambiguous, we look to legislative intent to
determine the m:eai;iing of that section, (See A.kxander v. Superior Court (1993) 5 Cal.4th 1218,
1226 [the primary task of statutory tonsrructlon is to ~cert:tln the intent of the Legislature
so 3$ to effectuate the purpose of the la,w).) Section 53097 was added to the Government
Code by Senate :Bill No, 1681 (i,983-1984 Reg. Sess.; Stats. 19841 cl:i, 657, § 2) (hereafter
S.B. 1681). This bill was enacted in respo~e fo a specific inciden,t when storm: witter runoff
from a school gite reportedly washed. out part of a neighborh~od in San Bernarclhlo County.
(Sen. Com. o~ Local Governnieru;, Analysis of Sen.• BillNo.1681 (1983-1984 Reg. Sess.) as ··
amended Febtuaty 9, 198.4, p; 1.~) San Be(n~r4mo CoWity officials !=Ontended t.hat f:i.ulfy
design and grading at the school site that allegedlyled to the. runoff could have been avoided
had the school district complied with ·local regulations. (Ibid;) In a separate arialysf~ of
S.B, 1681, the Legislative Analysc2 wrote as follows: ·
"This bill r.eqp.ites si:hool districts to ~amply with city or coµn;ty
ordinanc.es which i:eg~fate dt'.ai11age, road .itnprove111ep,ts and gra:dfug :fur oii,site
facilities, and to giv~ consideratfo11 to ordiru!ri(:e~ relating to the design and
constniqion of elf-site improvem~nts," (Legis. Analyst, analy~is of Sen. Bill
No. 1681 (1983-1984 Reg, Sess.), p.1 (Utiderscored emphasis in original),)
Similarly; when i.ection 53097 was amended by Ass:embly Bill No. .2781
(1989-1990 Reg, Sess.; Stats, 1990, ch . .275~ § 2 ), the bill, analysis hr.the S~nate Commlttee. on
Local Govern.merit pro~ded, as follows: .
"As$embly Bill 2781 permanently requires school districts to comply with
local ordinances. regulating drainage improvements, road imptovenients, and
gtading plans when U)')' construct amitc impnive,i'l;ent.s: They must consid,er local
requirements when they construct offsite improvements," (Sen, Com, on Loc:al
Gov~rnrrie11t, Analysis of M$eni, Bili No. 2781 (1989-1990 Reg. Sess,) as
amended May 24; 1990; e1~phasis added,)
Thns, the legislativ.e history of section. 53097 shows th:!t the sta~ute is an
. iµstr,a.ction regard,itig oni;ite and offsite µnproveme~t~) it requires the g9verning board of a
school district to. comply with focal ordinances. relat¢d to ·onsite improveme~ts arid to
consider local ordinances related to offsite iniprov.einerits. Be.cause the qualifying phr~e
includes the re.ference to o~ite improve1nents, ·these ntatedals indicate that the qualifying
2 Rep~rts of the Legislativ.e Anaiyst are included fa the list of legi~la,tive Wstory
doc;um~nts "that have been re¢ognized by the California Supreme Court or (the Third District
Court of Appeal] .as constituting cognizable legislative history "" ." (Kaufman & BJ'oad
Communiti,s, Inc. v. Performan~e Plasterint, Inc. (2005) 133 Cal.App.4th 26, 32,)
a .oriorabie &;ott Wilk-Reqaest#1327658 -Page 4
phr~e-ap.plles to apj.ordinance regulating drainage improvement$ and conditions, regulating
road ixµpr.ovements and. con4itipns, or req!titing review and_ approvalotgrading plans.
As t,o: which ordinance provisiQns are encompass~ by sec=tfon 53097 under this
cons~ru:ction; we qp no-r address a specific local Q°i'clinance in,. th~ opip.jon. Whether a
par#~r· fo~al-ordin:µu;e ,::onstitutes one o_f th()s_e d~crihed in·section 53097 wollld be a
matter f?t a court to de~e_i;mi,ne-in a spe96a factu;il context. However,· we think a court
would tak_e, irlto at.count th¢. two consider.i#oni; des(:tiQed· below when determining whether
ah otdinance :fulbwithiri the omiteiµtpr~vement oi:dinances described in se~tio.p 53097!
. First, ithough sch~ol districts have unmµriity from local re~aJi6A urµess d'k
~tate has CP11$t::~ted to waive that immunity (Laidtaw Waste Systems, Inc. 1/, Bay Citi# Serv{res_,
. Inh, {upra/a:t P· 6?,5), that waiver of immunity must he clearly expressed; (Bame v. City -of Del·
.. Mar (iooi) 8'5 Cali\pp.4th)346, 1358.) Moreover, la,ws that tend tci limit sovereigrtty.are
strkcly construed in favor: of the state; (Greene-v •. P.rancbise Tax ~cl, {l9n).27 Ca.LA.pp.3d 38,:
4'z.). therefore, while, settion 53097 is a cJearly a-pressed waiver of immunity, unless an
ordirianc~ is of the 1tkd c;f¢;i.rly covered bj that se-ction; we. do not thii;1k ii; c~ur~ woulMind
tbatitn.m.uhl.ty ha:d been waived as to tbai: Qrdirumce. , . . · . .
Se:cond, we think -a cqut't wouJ:9-also considet the effect oft.he reter~c¢ in the
411:ali,fymg_ phrase to or<ilnances "which affect drainage, to;i:4 conditions; or :grading." .'i"h~i
iefetel).·~1= woqld b_e :4rine"essary unless it fu_rther narrowed the thre~-kinds of ordinances ·
ll~ted 1ri section 530~7. I~ determining :whether an ordinance affects dr~_age,. road
COJ.lqitions, or grading,. it is our view that a ,court would look to cl}e pi,aj,ose: .µna~riylng the-
enaet;n:i,ent of die section. As dist~s~4 above, i;ecclon 53097 was addeliin tespons,e_ to d~ag~
~ pi-opei:cy ¢a,IU!ed..hy-si:omi. runoff from a school site, (See also 71 Ops,CalAttiy;G~n. tli,
342: (1988) {"!he piltp9se of tQe statqte {-is to avoidf a recurrence of datiiage ftCl/:n water
t·ilnoff from an imptcipedj, g~aged or dra:ined sch_o.oJ site#].) Based on the putp:ose and
legislative :hfatoryof section ~3097,. w:e ~hin.lc a c'Oqrr: would Likely conclude 1:ha:t s·ecti.o.n 5.>097·
requires c9mi>.liance with· only those foca:I orqjnances tha~ pelp ;i,ch_ieve the goal of.~voidihg
damage to ::treas slii;toupdi,ng a schooi site rhat tesults from water tti,;i.off or iim:ilar
t::!'.iiseqiie.utes of construction activities, siic.h a§ a. lpcal orclip.ance requiting adherence co
specifo;: pnysica:Ipa:rattiete('~ in. order to ensure proper water:r_l,Jlioff,
· A.ccordfugly,-i.c js our opinion that, with respect to a cii:y or co).lnty 6r'dinance t;h'ai:
(i) regcifates drain.age improvem~nts and condition~, (2) tegulates roa:q improvements ~d
con:cliti9ni;, 01· (3) require~ the review an{appro:v;iJ. of grading plans, the governing bo"a"rd of a
school district ~ required to r::omply with that-ordin31?,_ce to the ~xi:ent tha:t the otc!in:ahce
Honorable Scott Wilk..:.._ Request #1327658 -Page 5
relates to the design and construction of onsite· improvements that affect drainage, road
conditions, ot grading.
Very truly yours,
Diane F. Boyer-Vine
Legislative Counsel
.,. __ ..,<~k--
t:., ... -o
Bj .
· J~ort K. Lee
Deputy Legislative Counsel