BILL ANALYSIS Ó
SB 313
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Date of Hearing: June 15, 2016
ASSEMBLY COMMITTEE ON EDUCATION
Patrick O'Donnell, Chair
SB
313 (Monning) - As Amended June 2, 2016
[Note: This bill is doubled referred to the Assembly Local
Government Committee and will be heard by that Committee as it
relates to issues under its jurisdiction.]
SENATE VOTE: 29-3
SUBJECT: Local government: zoning ordinances: school
districts
SUMMARY: Imposes additional requirements on the governing board
of a school district that chooses to render a city or county
zoning ordinance inapplicable for a proposed use of property on
agriculturally zoned land. Specifically, this bill:
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1)Requires a school district to, prior to commencing the
acquisition of real property for a new schoolsite in an area
designated for agricultural use, do the following:
a) Notify and consult with the county agricultural
commissioner.
b) Attempt to minimize any land use incompatibilities that
may arise when using a portion of land in an area zoned for
agricultural production for a purpose other than
agricultural use.
2)Strikes the 2/3 vote requirement for a governing board of a
school district to render a city or county zoning ordinance
inapplicable to a proposed use of property by a school
district.
3)Requires the governing board of a school district that chooses
to render a city or county zoning ordinance inapplicable for a
proposed use of property on agriculturally zoned land to take
the required vote of 2/3 of its members at least 30 days after
the governing board has notified the city or county, in
writing, of the reason the governing board intends to take
this action, and based upon written findings that a zoning
ordinance fails to accommodate the need to renovate and expand
an existing public school or locate a new public school within
the city or county.
4)Specifies that the authority of a city or county to commence
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an action in the superior court seeking a review of the action
of the governing board of a school district to determine
whether the action was arbitrary and capricious shall be
conducted pursuant to Section 1094.5 of the Code of Civil
Procedure.
EXISTING LAW:
1)Authorizes the governing board of a school district that has
complied with the notification requirements to the local
planning commission, by a vote of 2/3 of its members, to
render a city or county zoning ordinance inapplicable to a
proposed use of property by the school district. Specifies
that the governing board of the school district may not take
this action when the proposed use of the property by the
school district is for nonclassroom facilities, including, but
not limited to, warehouses, administrative buildings, and
automotive storage and repair buildings. (Government Code
Section 53094)
2)Requires the governing board of the school district to, within
10 days, notify the city or county concerned of any action
taken. Provides that if the governing board has taken such an
action, the city or county may commence an action in the
superior court of the county whose zoning ordinance is
involved or in which is situated the city whose zoning
ordinance is involved, seeking a review of the action of the
governing board of the school district to determine whether it
was arbitrary and capricious. Requires the city or county to
cause a copy of the complaint to be served on the board.
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Provides that if the court determines that the action was
arbitrary and capricious, it shall declare it to be of no
force and effect, and the zoning ordinance in question shall
be applicable to the use of the property by the school
district. (Government Code Section 53094)
3)Requires a governing board of a school district, prior to
acquiring real property for a new schoolsite in an area
designated in a city, county, or city and county general plan
for agricultural use and zoned for agricultural production, to
make all of the following findings:
a) The school district has notified and consulted with the
city, county, or city and county within which the
prospective schoolsite is to be located.
b) The final site selection has been evaluated by the
governing board of the school district based on all factors
affecting the public interest and not limited to selection
on the basis of the cost of the land.
c) The school district will attempt to minimize any public
health and safety issues resulting from the neighboring
agricultural uses that may affect the pupils and employees
at the schoolsite. (Education Code Section 17215.5)
4)Requires the governing board of a school district to, prior to
commencing the acquisition of real property for a new
schoolsite or an addition to an existing schoolsite, evaluate
the property at a public hearing using the site selection
standards established by the California Department of
Education (CDE). (Education Code Section 17211)
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FISCAL EFFECT: None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS: Background. Under current law, the governing board
of a school district, after complying with notification
requirements to local planning agencies, is authorized to
override local city or county zoning ordinances by a 2/3 vote of
the governing board for school facilities. Existing law
prohibits this override for any nonclassroom facilities,
including, but not limited to, warehouses, administrative
buildings, and automotive storage and repair buildings. The
governing board of a school district is required to notify the
city or county within 10 days of such an action. Existing law
gives a city or county the authority to take action in the
superior court seeking a review if it determines that the
override was arbitrary and capricious.
This bill adds additional requirements for governing boards
seeking to render a zoning ordinance inapplicable on land zoned
for agricultural purposes. This bill requires the governing
board of a school district to do the following prior to waiving
a zoning ordinance designated for agricultural production:
Notify and consult with the county agricultural
commissioner.
Attempt to minimize any land use incompatibilities that
may arise when using a portion of land in an area zoned for
agricultural production.
Notify the city and county, at least 30 days prior to
taking the required 2/3 vote, in writing, of the reason the
governing board intends to waive an agriculturally zoned
land and based upon written findings that a zoning
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ordinance fails to accommodate the need to renovate and
expand an existing public school or locate a new public
school within the city or county.
Purpose of the bill. The author states, "Placing schools in
exclusively agricultural production zones not only removes
limited agricultural land from production, but also raises
important public health concerns about exposing students to
pesticide drift and contamination. While there are existing
notification requirements that a school board must follow before
siting a school outside a local general plan, there is still a
glaring need for greater awareness by cities, counties, and the
public as to why existing zoning is inadequate for school
construction."
Siting of schools is a complicated process. Siting schools is
not an easy process. Existing law and state regulations require
school districts seeking state bond funds to avoid siting
schools near freeways or airports, hazardous or solid waste
disposal sites, or where there are underground pipelines, and
require school districts to comply with California Environmental
Quality Act (CEQA) requirements, review by the Department of
Toxic Substances Control, and approval by the CDE. Other
challenges include objections by neighbors who do not want
schools sited near their properties or insufficient available
land requiring school districts to take property through eminent
domain.
Current law already requires notification. Current law already
requires several layers of notification to cities and counties
of school facilities plans. The Education Code specifically
requires notification prior to acquiring property zoned for
agricultural production and requires the governing board of a
school district to make specified findings, including that the
governing board had evaluated all factors affecting the public
interest and that the site was not selected solely because of
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the cost of the land. Public Resources Code Section 21151.2
requires school districts to notify local planning commissions
of a proposed acquisition and prohibits acquiring title of the
property until a report from the planning commission has been
received. A school district is prohibited from acquiring title
to the property until 30 days after the commission's report has
been received if the report does not favor acquisition of the
property. Government Code Section 65352.2 requires a school
district, in conducting a school facility needs analysis or
other long-range plan that may result in expansions of
schoolsites or the need to acquire additional schoolsites, to
provide information to the planning commission at least 45 days
prior to completing the needs analysis or long-range plan.
Current law under Education Code Section 17211, also requires
the governing board of a school district, prior to acquiring
property, to evaluate the property at a public hearing. It is
unclear how or why these current requirements are not sufficient
in ensuring that a planning commission is notified and has
opportunities to weigh in on school district plans for school
facilities.
Requirements unclear. This bill requires a school district to
attempt to minimize any land use incompatibilities when using a
portion of land zoned for agricultural production. It is
unclear what "incompatibility" means and how school districts
are to "minimize" the incompatibility. For example, does the
fact that the land is zoned for agriculture make it
incompatible? Is it still incompatible if the site is a future
growth area under the general plan? If a proposed schoolsite is
next to existing farmland, does that make it incompatible? Who
would determine whether the proposed schoolsite is incompatible?
Given that the motivation behind the bill appears to be to
reduce or halt siting of schools on agricultural land, there are
strong concerns that this language could lead to potential
litigation. Can the owner of a neighboring farmland sue the
school district claiming incompatibility or that the school
district did not take sufficient action to minimize
incompatibilities?
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According to the sponsor, the California Farm Bureau Federation,
and the author's office, incompatibilities may include issues
around lack of infrastructure, roads, sewers, sidewalk,
transportation, safe-routes to school and planning issues. Most
of these issues are addressed through the CEQA and CDE's site
approval processes. Acquisition of schoolsites requires CEQA
review and school districts are required to develop mitigations
in response to issues raised through the CEQA process. As such,
staff recommends striking this language. Alternatively, the
Committee may wish to consider language requiring school
districts to ensure that CEQA mitigations address general plan
provisions.
This bill prohibits a governing board of a school district from
waiving an agriculturally zoned ordinance until 30 days after it
submits written findings to the city or county of the reason it
intends to take the action and why a zoning ordinance fails to
accommodate expansion of a schoolsite or locate a new school
within the city or county. This requirement appears to require
the governing board of a school district to justify in writing
both why it is choosing a site as well as why it is not choosing
other locations identified for schools in a general plan.
Requiring a school district to identify all potential schoolsite
locations in a general plan and provide an explanation as to why
each location is not chosen seems onerous. Compulsory education
law requires all children aged 18 and under to attend school and
school districts to ensure that all children are adequately
housed. As mentioned previously, schoolsiting is not an easy
process and school districts need the flexibility to determine
appropriate locations of schoolsites in order to adequately
house existing and incoming children. Staff recommends striking
the requirement that a governing board justify why it is not
choosing other locations.
Pesticides regulations. Part of the motivation for the bill
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involves proposed regulations being considered by the Department
of Pesticide Regulation. Proposed regulations require
increasing notifications to schools regarding intended
applications of certain pesticides and impose additional
restrictions on applications. The supporters of the bill fear
that anti-pesticide advocates will seek future regulations
establishing no-spray zones around schools, thereby putting
farmlands near schools in jeopardy. The Committee may wish to
consider whether the answer is to make it difficult to site
schools on agricultural land, especially if a city or county's
general plan intends for those lands to be residential in the
future. With growth, school districts will need schools in
those areas to accommodate incoming students.
2/3 vote requirement eliminated. This bill eliminates the 2/3
vote requirement for governing boards of school districts to
waive a zoning ordinance. According to the author, this was a
drafting error. Staff recommends reinstating this requirement.
Related legislation. AB 1344 (Jones), held by the author in
this Committee, authorizes county offices of education (COE) to
render a city or county zoning ordinance inapplicable to a
proposed use of property by COEs, and requires the governing
board of a school district or county office to render a city or
county zoning ordinance inapplicable at the request of a charter
school for a charter school facility.
Arguments in support. A joint letter by most of the supporters
listed below states, "School locations can have many impacts on
traffic patterns, housing location, expansion of sewers,
waterlines, roads, and sidewalks, other basic infrastructure,
and the overall quality-of-life of a community. Instead of
schools being an anchor for communities, they instead are being
built on the urban fringe and incur more 'vehicles miles
travelled' and have a deleterious air quality impact. There is
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also push for further pesticide regulations around schools
despite air monitoring and soil sample studies that document
school children are safe and not being exposed to pesticides.
If schools want buffers zones around them, they should consider
that before they site the school near a working farm, not after
the school is built and then expect a farmer to take their land
out of production without any fair justification or
compensation."
Arguments in opposition. The Association of California School
Administrators (ACSA) states, "We are concerned that the
provisions of SB 313 will result in potential legal challenges
whereby a city or county authorities try to leverage a school
district into completing additional site work or forcing a
governing board to use a site that benefits the city or county
but not the school district or students we serve. ACSA believes
the current process for the placement of school sites provides
the necessary notification and justification through the Brown
Act and CEQA."
REGISTERED SUPPORT / OPPOSITION:
Support
Alameda County Farm Bureau
Agricultural Council of California
American Planning Association, California Chapter
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Association of California Egg Farmers
California Agricultural Commissioners and Sealers Association
California Association of Wheat Growers
California Association of Winegrape Growers
California Farm Bureau Federation
California Grain and Feed Association
California Pear Growers Association
California Seed Association
California State Association of Counties
California State Floral Association
California Fresh Fruit Association
Contra Costa County Farm Bureau
El Dorado County Farm Bureau
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Monterey County Farm Bureau
Napa County Board of Supervisors
Orange County Farm Bureau
Riverside County Farm Bureau
Sacramento County Farm Bureau
San Benito County Farm Bureau
San Diego County Farm Bureau
San Mateo County Farm Bureau
San Joaquin County Farm Bureau
Santa Clara County Farm Bureau
Santa Cruz County Farm Bureau
Solano County Farm Bureau
Stanislaus County Farm Bureau
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Western Growers Association
Yolo County Farm Bureau
Opposition
Association of California School Administrators
California Association of School Business Officials
California Building Industry Association
Coalition for Adequate School Housing
Analysis Prepared by:Sophia Kwong Kim / ED. / (916)
319-2087