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A Project’s Need For Public Services Is Not An Environmental Impact Requiring Mitigation Ivester, David


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.

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