HomeMy WebLinkAbout2020-09-24; Carlsbad Unified School District - Improvement Projects at Kelly Elementary School and Hope Elementary School; |Murphy, Jeff| Barberio, Gary|To the members of the:
.s rr~ COUNCIL
Date ~CA .!I__ CC ✓
CM ..Ji_ ACM .:/_ DCM {3) i::_
Sept.24,2020
Council Memorandum
To:
From:
Honorable Mayor Hall and Members of the City Council
Jeff Murphy, Community Development Director
Via:
Gary Barberio, Deputy City Manager, C~unity Services
Geoff Patnoe, Assistant City Manager g,
{city of
Carlsbad
Memo ID #2020198
Re: Carlsbad Unified School District -Improvement Projects at Kelly Elementary
School and Hope Elementary School
This memorandum provides information on two improvement projects being pursued by the
Carlsbad Unified School District (CUSD) at Kelly Elementary School (4885 Kelly Drive) and
Hope Elementary School (3010 Tamarack Avenue).
Background
Pursuant to the California Education Code §17280(a)(l), the design and construction of
school structures must be done in accordance with the standards established by the
California Division of the State Architect (DSA); local jurisdictions do not have land use
authority over building construction and therefore cannot require a discretionary or
ministerial permit for structural improvements conducted on school sites1, such as Kelly and
Hope Elementary Schools.
However, Government Code §53097 states that a school district is required to comply with
city regulations affecting onsite drainage, road conditions and grading. As such, schoot
districts that propose grading and road improvements as part of their development project
must comply with local codes, including securing appropriate permits from the local
jurisdiction, if required. This issue has been previously vetted with the City Attorney's Office
(dating back to 2008} and was confirmed by the state legislature's legal counsel (Legislative
Counsel Bureau) in a letter dated Nov. 13, 2013 (Attachment A).
Discussion
Late last year, staff was approached by representatives from CUSD on plans to modernize
Kelly Elementary School. Based on the scope of the work described, staff advised the
representatives in January of the need to secure a grading permit. As part of that permit, a
Storm Water Pollution Prevention Plan and Storm Water Quality Management Plan with
appropriate Best Management Practices would be required, consistent with the
1 Non-school sites, such as district administrative offices, do not fall under the education code and are required
to comply with local building codes and development standards.
Council Memo -CUSD Improvement Projects at Kelly and Hope Elementary Schools
Sept. 24, 2020
Page 2
requirements set forth under city code and the Regional 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 made repeated requests that CUSD provide evidence
supporting their position. In the meantime, in an effort to move the project forward, city
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 documentation, nor a
grading permit application have been filed with the city.
On July 29, 2020, the city received a call from the Carlsbad Municipal Water District about
grading 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 secured.
Following the Stop Work Order, on Sept. 17, 2020, representatives of the Kelly Elementary
School design team met with city staff where they agreed to submit grading plans and a
grading permit application for the Kelly Elementary School project. Representatives
anticipated that a formal application would be filed in November 2020. It is the city's
understanding 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 Elementary School project.
On Sept. 23, 2020, the city received a complaint from a resident living near Kelly Elementary
School complaining of dust and noise from grading operations being done on the property.
Upon inspection, city staff confirmed that the grading being conducted required a grading
permit and subsequently issued a Stop Work Order. City staff is consulting with the City
Attorney's Office on enforcement options, should CUSD not respond to the city's Stop Work
Order.
Next Steps
Once grading plans/applications are submitted, staff has committed to an expedited review
and will accept state processing requirements to satisfy the city's local submittal
requirements, if determined appropriate.
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, Carlsbad would be in violation of the MS4 stormwater permit with the RWQCB,
exposing the city to a possible Notice of Violation and associa.ted fines. While CUSD has
Council Memo -CUSD Improvement Projects at Kelly and Hope Elementary Schools
Sept.24,2020
Page 3
indicated a willingness of indemnifying the city, because 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: 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
LEGISl.,\Tl\'E. COUSSEL
Diane F. Boyer-Vine
CHIEF DEPUTY
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Honorable Scott Thomas Wille
Room 4153, State Capitol
LEGISLATIVE
COUNSEL
GU REAU
A TRADITION OF TRUSTED LfGAL SERVICE
TO TI-IE CAUfORNIA LEGISL~TURE
lEGISI.ATIVE COUNSEL BUREAU
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November 13, 2013
SCHOOL DISTRICTS: LOCAL ORDINANCES -#1327658
Dear Mr. Wilk:
QUESTION
Is the governing board of a school district required to comply with a city or county
ordinance related to drainage, road improvements, or grading?
OPINION
With respect to a city or county ordinance that (1) regulates drainage
improvements and conditions, (2) regulates road improvements and conditions, or
(3) requires the review and approval of grading plans, the governing board of a school district
is required to comply with that ordinance to the extent that the ordinance relates to the
design and construction of onsite improvements that affect drainage, road conditions, or
grading .
ANALYSIS
State agencies, including school districts, have immunity from local regulation
"unless the state, through statute or provision of the California Constitution, has consented
to waive such. immunity." (Laidlaw Waste Systems, Inc. v. Bay Cities Services, Inc. (1996) 43
Cal.App.4th 630, 635.) The Legislatme has consented to waive the immunity of school
Honorable Scott Wille -Request #1327658 -Page 2
districts from local regulation in certain situations, including the circumstances described in
Government Code section 53097.1
Section _53097 addresses the duty of the governing board of a school district to
comply with local ordinances regarding drainage, roads, and grading, and provides as follows:
· "Notwithstanding any other provisions of this article, the governing board of
a school district s1,all comply with any city or county ordinance (1) regulating drainage
improvements and conditions, (2) regulating road improvements and conditions, or
(3) requiring the review and approval of grading plans as these ordinance provisions
relate· to the design and construction of onsite improvements wl,icl, affect drainage, road
conditions, or grading, and shall give consideration to the specific requirements
and conditions of city or county ordinances relating to the design and
construction of offsite improvements. If a school district elects not to comply
with the requirements of city or county ordinances relating to the design and
construction of offsite improvements, the city or county shall not be liable for
any injuries or for any damage to property caused by the failure of the school
district to comply with those ordinances." (Emphasis added.)
As indicated above, section 53097 requires school districts to comply with city or
county ordinances of three specific kinds: those that regulate drainage improvements and
conditions, those that regulate road improvements and conditions, and those that require the
review and approval of grading plans so long as those ordinance provisions relate to the design
and construction of onsite improvements which affect drainage, road conditions, or grading.
Section 53097 also requires school districts to give consideration to the specific requirements
and conditions of city or county ordinances relating to. the design and construction of offsite
improvements.
To ascertain the meaning of a statute, we begin with the language in which the
statute is framed. (Leroy T. v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 434, 438; Visalia
Scl,ool Dist. v. Workers' Comp. Appeals Bd. (1995) 40 Cal.App.4th 1211, 1220.) Although
section .53097 requires a school district to comply with city or county ordinances of three
kinds, the phrase "as these ordinance provisions relate to the design and construction of
onsite improvements which affect drainage, road conditions, or grading" qualifies that ·
requirement by indicating that some provisions are not covered by that requirement-
namely, those that do not relate to onsite improvements affecting drainage, road conditions,
or grading. However, because that phrase (hereafter the qualifying phrase) follows the
enumeration of the three kinds of ordinances, neither the structure of the sentence nor its
1 All further section references are to the Government Code, unless otherwise
indicated. Sections 53091 arid 53094 also waive a school district's immunity from local regulation
under particular circumstances that are not relevant to our analysis.
-------···-······· ---------------
Honorable Scott Wille -Request #1327658 -Page 3
punctuation indicates whether the qualifying phrase refers to only those ordinances requiring
the review and approval of grading plans or to ordinances of all three kinds.
Because the language of section 53097 is ambiguous, we look to legislative intent to
determine the meaning of that section. (See Alexander v. Superior Court (1993) 5 Cal.4th 1218,
1226 [the primary task of statutory construction is to ascertain the intent of the Legislature
so as to effectuate the purpose of the law).) Section 53097 was added to the Government
Code by Senate Bill No. 1681 (1983-1984 Reg. Sess.; Stats. 1984, ch. 657, § 2) (hereafter
S.B.1681). This bill was enacted in response to a specific incident when storm water runoff
from a school site reportedly washed out part of a neighborhood in San Bernardino County.
(Sen. Com. on Local Government, Analysis of Sen. Bill No. 1681 (1983-1984 Reg. Sess.) as
amended February 9, 1984, p. 1.) San Bernardino County officials contended that faulty
design and grading at the school site that allegedly led to the runoff could have been avoided
had ·the school district complied with local regulations. (Ibid.) In a separate analysis of
S.B. 1681, the Legislative Analysr2 wrote as follows:
"This bill requires school districts to comply with city or county
ordinances which regulate drainage, road improvements and grading for on-site
facilities, and to give consideration to ordinances relating to the design and
construction of off-site improvements." (Legis. Analyst, analysis of Sen. Bill
No. 1681 (1983-1984 Reg. Sess.)·, p.1 (underscored emphasis in original).)
Similarly, when section 53097 was amended by Assembly Bill No. 2781
(1989-1990 Reg. Sess.; Stats, 1990, ch. 275, § 2), the bill analysis by the Senate Committee on
Local Government provided as follows:
"Assembly Bill 2781 permanently requires school districts to comply with
local ordinances regulating drainage improvements, road improvements, and
grading plans when tlJey construct onsite improvements. They must consider local
requirements when they construct offsite improvements," (Sen. Com. on Local
Government, AnaJysis of Assem. Bill No. 2781 (1989-1990 Reg. Sess.) as
amended May 24, 1990; eniphasis added.)
Thus, the legislative history of section 53097 shows that the statute is an
instruction regarding onsite and offsite improvements; it requires the governing board of a
school district to comply with local ordinances related to onsite improvements and to
consider local ordinances related to offsite improvements; Because the qualifying phrase
includes the reference to onsite improvements, these materials indicate that the qualifying
2 Reports of the Legislative Analyst are included in the list of legislative history
documents "that have been recognized by the California Supreme Court or [the Third District
Court of Appeal) as constituting cognizable legislative history .... ." (Kaufman & Broad
Communities, Inc. v. Peiformance Plastering. Inc. (2005) 133 Cal.App.4th 26, 32,)
Honorable Scott Wille -Request #1327658 -Page 4
phrase applies to any ordinance regulating drainage improvements and conditions, regulating
road improvements and conditions, or requiring review and approval of grading plans.
As to which ordinance provisions are encompassed by section 53097 under this
construction, we do not address a specific local ordinance in this opinion. Whether a
particular local . ordinance constitutes one of those described in· section 53097 would be a
matter for a court to determine in a specific factual context. However,· we think a court
would take into account the two considerations described below when determining whether
an ordinance falls within the onsite improvement ordinances described in section 53097.
First, although school districts have immunity from local regulation unless the
state has consented to waive that immunity (Laidlaw Waste Systems, Inc. v. Bay Cities Services,
Inc., supra, at p. 635), that waiver of immunity must be dearly expressed. (Bame v. City of Del
Mar (2001) 86 Cal.App.4th 1346, 1358.) Moreover, laws that tend to limit sovereignty are
strictly construed in favor of the state. (Greene v. Franchise Ta:x Bd. {1972) 27 Cal.App.3d 38,
42.) Therefore, while section 53097 is a clearly expressed waiver of immunity, unless an
ordinance is of the kind dearly covered by that section, we do not think a court would find
that immunity had been waived as to that ordinance.
Second, we think a court would also consider the effect of the reference in the
qualifying phrase to ordinances "which affect drainage, road conditions, or grading." That
reference would be unnecessary unless it further narrowed the three kinds of ordinances
listed in section 53097. In determining whether an ordinance affects drainage, road
conditions, or grading, it is our view that a court would look to the purpose underlying the
enactment of the section. As discussed above, section 53097 was added in response to damage
to property caused by storm runoff from a school site, (See also 71 Ops.Cal.Atty.Gen. 332,
342 (1988) ["The purpose of rhe statute [is to avoid] a recurrence of damage from water
runoff from an improperly graded or drained school site"].) Based on the purpose and
legislative history of section 53097, we think a court would likely conclude that section 53097
requires compliance with only those local ordinances that help achieve the goal of avoiding
damage to areas surrounding a school site that results from water runoff or similar
consequences of construction activities, such as a local ordinance requiring adherence to
specific physical parameters in order to ensure proper water runoff.
Accordingly, it is our opinion that, with respect to a city or county ordinance that
(1) regulates drainage improvements and conditions, (2) regulates road improvements and
conditions, 01· (3) requires the review and approval of grading plans, the governing board of a
school district is required to comply with that ordinance to the extent that the ordinance
· Honorable Scott Wilk -Request #1327658 -Page 5
relates to the design and construction of onsite improvements that affect drainage, road
conditions, or grading.
JKL:sjk
Very truly yours,
Diane F. Boyer-Vine
Legislative Counsel
t/~ ~.l__..
0
By
Jason K. Lee
Deputy Legislative Counsel