A project that adds homes and commercial buildings to a community typically increases the need for various municipal services, such as fire and police protection.  As the Court of Appeal recently confirmed in City of Hayward v. Board of Trustees, that need, though, is not itself an “environmental impact” of the project that the California Environmental Quality Act (“CEQA”) requires the project proponent to mitigate.

In City of Hayward, a state university prepared an environmental impact report (“EIR”) evaluating the environmental effects of its proposed master plan for the expansion of its campus, including two specific building projects, one for student housing and one for a parking structure.  It concluded that building out the master plan would result in significant effects on aesthetics, air quality, cultural resources, and traffic, notwithstanding implementation of all feasible mitigation.  All other effects, including effects on public services, were found to be insignificant or fully mitigated.  The EIR concluded that the increase in campus population would not result in a significant environmental effect regarding fire and emergency medical services provided by the city fire department.  It explained that the increased population would call for the addition of 11 firefighters, roughly the equivalent of one fire company, in order to maintain an adequate service ratio of one staff person for 1,000 people and that the facilities to house the added staff would be achieved by adding a bay to an existing fire station or constructing a new fire station.  Noting that construction of such facilities would be subject to review under CEQA, the EIR concluded that since construction of such facilities would affect only a small area (an acre or less) in an urban location, it would not cause significant environmental effects.  Based on this analysis, the EIR concluded that no mitigation regarding fire protection services was required.

The City of Hayward, in which the campus is located, sued alleging that the university had failed to comply with CEQA.  The city contended that the university first should have concluded that the project would have a significant effect on emergency response times and thus the health and safety of the community, owing to the nonexistence of the additional firefighters and facilities needed to serve the increased population, and then should have assessed possible measures to mitigate that effect, such as hiring additional firefighters and building facilities to house them.  The trial court agreed, explaining that it is not the increased demand for fire protection services that must per se be evaluated as an environmental impact, but rather that the lack of adequate fire protection services resulting from the project would have adverse effects on people and property.  The university appealed.

The Court of Appeal reversed.  With respect to the contention that the campus population increase would delay emergency response times and that would have real effects on the spread of fire and the safety of people and property, the Court responded:  “While this may be true, the obligation to provide adequate fire and emergency medical services is the responsibility of the city [under the California Constitution.]  The need for additional fire protection services is not an environmental impact that CEQA requires a project proponent to mitigate.”  The Court noted that the EIR analyzes response times and their impact on public safety, “concludes that the project will cause response times to fall to an inadequate level and finds that 11 additional fire fighters will be required to maintain adequate service levels,” and “sets forth measures needed to provide adequate emergency services and concludes . . . that those measures will not have a significant effect on the environment.”  In the Court’s view, that sufficed.  It explained:  “Although there is undoubtedly a cost involved in the provision of additional emergency services, there is no authority upholding the city’s view that CEQA shifts financial responsibility for the provision of adequate fire and emergency response services to the project sponsor.  The city has a constitutional obligation to provide adequate fire protection services.  Assuming the city continues to perform its obligations, there is no basis to conclude that the project will cause a substantial adverse effect on human beings.”

The Court found the EIR adequate as well in all other respects, except one, its discussion of the project’s effects on two neighboring parks, and ordered a writ of mandate to issue accordingly.

The Court’s opinion may serve to help stem the practice of some agencies to use CEQA as a mechanism to help fund municipal services by treating projects’ needs for such services as environmental impacts and calling on project proponents to mitigate those impacts by paying for municipal services and facilities.

David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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