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Appellants Campbell Union School District (CUSD) and Campbell Union School

District Governing Board (the Board) appeal from the trial court’s invalidation of the

Board’s 2012 resolution enacting a fee on new residential development under Education

Code section 17620. CUSD and the Board contend that the trial court could not

invalidate the Board’s resolution and order that respondent SummerHill Winchester,

LLC’s fees be refunded because the Board properly relied on a fee study that used a

reasonable methodology to calculate the fee. We conclude that the fee study did not

contain the data required to properly calculate a development fee. Accordingly, we

affirm the trial court’s judgment.

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I. Background

Education Code section 17620 authorizes a school district “to levy a fee, charge,

dedication, or other requirement against any [new residential] construction within the

boundaries of the district, for the purpose of funding the construction or reconstruction of

school facilities . . . .” (Ed. Code, § 17620, subd. (a)(1).) These fees are known as

“Level 1” fees.1

A school district “shall do all of the following: [¶] (1) Identify the

purpose of the fee. [¶] (2) Identify the use to which the fee is to be put. If the use is

financing public facilities, the facilities shall be identified. That identification may, but

need not, be made by reference to a capital improvement plan as specified in Section

65403 or 66002, may be made in applicable general or specific plan requirements, or may

be made in other public documents that identify the public facilities for which the fee is

charged. [¶] (3) Determine how there is a reasonable relationship between the fee’s use

and the type of development project on which the fee is imposed. [¶] (4) Determine how

there is a reasonable relationship between the need for the public facility and the type of

development project on which the fee is imposed.” (Gov. Code, § 66001, subd. (a).)

In February 2012, Jack Schreder & Associates prepared a “Level 1 Developer Fee

Study” (the fee study) for CUSD.2

In 2012, CUSD had three middle schools and nine

elementary schools. The fee study calculated that, using statewide “loading factors,”

CUSD’s capacity was 7,373 students. CUSD’s enrollment already exceeded this

calculated capacity by 155 students in 2009/2010. An additional 24 students were added

the following school year (2010/2011), and another 132 additional students were added in



1

Level 2 and Level 3 fees, which are not at issue in this case, are authorized by

Government Code sections 65995.5 and 65995.7, rather than Education Code section

17620.

2

Although the fee study was over 50 pages long, most of its length was consumed

by boilerplate and some it was devoted to commercial development. The key portions for

our purposes are quite brief.

3

2011/2012. Thus, at the time of the fee study, CUSD’s enrollment already exceeded the

fee study’s calculated capacity by 311 students. The fee study also projected future

enrollment growth, but these projections did not take into account any new residential

construction. The fee study projected that 359 additional students would enroll in

CUSD’s schools over the next five years after the 2011/2012 school year.

The fee study devoted little attention to future new residential construction. There

was just a single paragraph addressing how much new residential construction was

expected within CUSD’s boundaries in the next five years. It stated: “The City of San

Jose, City of Campbell and the County of Santa Clara Planning Departments were

contacted regarding current and future residential development projects within the

District’s boundaries. According to the planning departments, there are in excess of 133

residential units that could be constructed over the next five years. The proposed units

were not included in the enrollment projection to augment the projection.” Schreder had

actually obtained “quantified” information from only the City of Campbell. The County

of Santa Clara provided no information, and the City of San Jose had no “quantifiable”

information to provide.3

The fee study projected that “it will cost the District an average of $22,039 to

house each additional student in new facilities.” This figure was based on a projected

$12.8 million cost to build a new 600-student elementary school and a projected $24.4

million cost to build a new 1,000-student middle school. However, CUSD and the Board

conceded that they “do not contend that there is a need to build two new schools for



3

This information was contained in responses from CUSD and the Board to special

interrogatories. CUSD and the Board do not and did not object to the trial court’s or our

consideration of this evidence. Our record contains no document identified as the

administrative record in this case.

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1,600 students for an expected capacity increase by 2016-17 of 359 students.”4

Using

statewide averages, the fee study calculated a “student yield factor” of .5 students per

single-family residential unit. It used a real estate database to estimate an average

residential unit size of 1,773 square feet. Using these figures, the fee study calculated a

per square foot fee for new residential construction of $6.21. $22,039 (per student cost

for the two new schools) multiplied by .5 (students per unit) and divided by 1773 (square

feet per unit) equals $6.21. Since the statutory maximum for a Level 1 fee in 2012 was

$3.20 per square foot, the fee study asserted that its calculations supported imposition of

the maximum fee.5

As CUSD had a fee sharing agreement with the high school district

under which CUSD received 70 percent of any such fee, CUSD’s share was $2.24 per

square foot.

In March 2012, the Board, relying on the fee study, adopted a resolution imposing

a fee of $2.24 per square foot on new residential construction and making numerous

findings. The Board found that CUSD’s enrollment “presently exceeds capacity, is at

capacity, or will exceed capacity.” It also found that new residential construction “will

increase the need for” school facilities. The Board found: “Substantial residential

development . . . is projected within the District’s boundaries and the enrollment

produced thereby will exceed the capacity of the schools of the District. As a result,

conditions of overcrowding, exist or will exist, within the District, which will impair the

normal functioning of the District’s educational programs.” It further found that the fees

proposed by the fee study were “for the purposes of providing adequate school facilities”

and “will be used for construction and/or reconstruction of school facilities . . . .” The



4

This concession was made in a response by CUSD and the Board to a special

interrogatory. CUSD and the Board did not object to this evidence in the trial court nor

do they on appeal.

5

Government Code section 65995 sets the maximum amount that may be levied per

square foot of residential construction. (Gov. Code, § 65995, subd. (b)(1).)

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Board concluded that there was a “reasonable relationship” between the fees and “the

need for school facilities created by the types of development projects on which the fees

are imposed.” The Board declared that it had considered other possible revenue sources.

SummerHill Winchester, LLC (SummerHill) owns a 110-unit residential

development project in the City of Santa Clara that is within CUSD’s boundaries. In

2012 and 2013, SummerHill tendered to CUSD under protest development fees of

$499,976.96.

II. Procedural Background

SummerHill filed a petition for a writ of mandate and complaint for declaratory

relief seeking a refund of the fees it had paid to CUSD and a declaration that the fees

were invalid.

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SummerHill alleged that CUSD’s development fees were “unreasonable

because they are excessive, are not roughly proportional or reasonably related to the

burdens caused by the Project, and lack an essential nexus between the amount of the

school development fees imposed on the Project and CUSD’s alleged need to construct

certain improvements and facilities for reasons that are attributable to the Project, and are

therefore invalid.”

SummerHill argued that “the first problem” with the fee study was that it had

failed to “actually calculate actual expected growth.” Schreder had obtained information

from only the City of Campbell, rather than all of the cities and the County of Santa Clara

within CUSD’s boundaries. The second problem was that the fee study did not identify

any necessary new facilities required because of new development but instead used

“hypothetical schools” as the basis for its cost figures even though CUSD had no plans to

build new schools. SummerHill contended: “They have to calculate how much new



6

SummerHill’s original petition/complaint was filed in April 2013; its amended

petition/complaint was filed in February 2014.

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development there will be, how many students it will generate, what capital facilities are

necessary to accommodate those students, what that costs, and then do some math to

spread those costs over the new development. [¶] Really, all they did was the math.

They didn’t do any of the rest.”

CUSD and the Board responded that “eventually” CUSD would have to build new

schools or “at least the potential existed for that.” They claimed that the factors discussed

in prior cases were inapplicable to CUSD because each of the school districts in those

cases “wasn’t at capacity yet” as CUSD was.

The trial court granted SummerHill’s petition on the ground that the fee study did

not contain sufficient support for the Board’s resolution. The court ruled: “The Fee

Study used to support the Resolution was defective in the following particulars: (1) it did

not project the total amount of housing that was to be constructed in the district; (2) it did

not adequately estimate the number of new students in the district resulting from the new

development; and (3) it did not establish the necessary relationship between the number

of new students and the proposed capital facilities. The Study’s projection based on ‘at

least’ 133 new units yielding 67 new students is not an acceptable alternative

discretionary methodology. These hypothetical numbers may be an appropriate

mathematical formula to determine a cost per student. However, the methodology fails to

make a sufficient finding on the first two prongs of the Shapell[

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] test. The third prong

cannot be met because the report fails to consider the impact of funding already existing

from a bond and how it might be used to accommodate the increase in the number of

students. Therefore, it cannot be determined with any accuracy what developer funding

is necessary as a result of the new residential housing. The Fee Study cost calulation is

heavily dependent on two hypothetical new schools which may never be constructed.

Instead, the required approach would have been to consider the cost of the real



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Shapell Industries, Inc. v. Governing Board (1991) 1 Cal.App.4th 218 (Shapell).

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construction plans which already existed. The Fee Study should have indicated what the

district intended to do to accommodate the growth and project a cost on that basis.

CUSD does not have the discretion to estimate a cost per student based on the

construction of new schools when the increase in number of students may not cause the

construction of any new facilities.”

The court’s initial order did not order CUSD to refund SummerHill’s fees.

Instead, it gave CUSD time to revise the fee study and enact a new resolution with

recalculated fees. SummerHill moved for reconsideration on the ground that CUSD

should not be permitted to revise its fee study to support recalculated fees. The court

granted SummerHill’s motion for reconsideration. The court concluded that a

recalculation was not possible without “amending some of the data relied upon by the

Board.” It ordered that SummerHill’s fees be refunded.

The court issued a statement of decision and a peremptory writ of mandate

requiring CUSD and the Board to set aside the resolution and refund SummerHill’s fees.

CUSD and the Board timely filed a notice of appeal. The trial court subsequently denied

SummerHill’s motion for attorney’s fees under Code of Civil Procedure section 1021.5.

III. Discussion

A. Standard of Review

The Board’s enactment of the challenged fees was a quasi-legislative action that

SummerHill challenged by ordinary mandamus. Under these circumstances, “ ‘[a] court

will uphold the agency action unless the action is arbitrary, capricious, or lacking in

evidentiary support. A court must ensure that an agency has adequately considered all

relevant factors, and has demonstrated a rational connection between those factors, the

choice made, and the purposes of the enabling statute.’” (Shapell, supra, 1 Cal.App.4th

at p. 232.) “[T]he ultimate question, whether the agency’s action was arbitrary or

capricious, is a question of law.” (Shapell, at p. 233.) Consequently, we accord no

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deference to the trial court’s decision.8

(Ibid.) Our role, like the trial court’s, is to

determine whether the enactment of the challenged fees by CUSD and the Board lacked

evidentiary support or failed to demonstrate a rational connection between the relevant

factors, the purpose of the statute, and the decision to enact the fees.

B. Analysis

“[F]acilities fees are justified only to the extent that they are limited to the cost of

increased services made necessary by virtue of the development. [Citations.] The Board

imposing the fee must therefore show that a valid method was used for arriving at the fee

in question, ‘one which established a reasonable relationship between the fee charged and

the burden posed by the development.’ [Citations.] [¶] In our view such a showing with

respect to the fees in this case must involve the interrelation of three elements. First,

since the fee is to be assessed per square foot of development, there must be a projection

of the total amount of new housing expected to be built within the District. Second, in

order to measure the extent of the burden imposed on schools by new development, the

District must determine approximately how many students will be generated by the new

housing. And finally, the District must estimate what it will cost to provide the necessary

school facilities for that approximate number of new students.” (Shapell, supra, 1

Cal.App.4th at p. 235.) “Since the process required of the District will necessarily

involve predictions regarding population trends and future building costs, it is not to be

expected that the figures will be exact. Nor will courts concern themselves with the



8 We have received amicus briefs from the California School Boards Association’s

Education Legal Alliance and from the Coalition for Adequate School Housing and

California Association of School Business Officials in support of CUSD and the Board.

They argue that the trial court failed to apply the appropriate standard of deferential

judicial review. Since our review is independent of the trial court’s review, this argument

is only pertinent to our review standard. It does not matter what review standard was

applied by the trial court.

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District’s methods of marshalling and evaluating scientific data. [Citations.] Yet the

court must be able to assure itself that before imposing the fee the District engaged in a

reasoned analysis designed to establish the requisite connection between the amount of

the fee imposed and the burden created. We do not believe this can be accomplished

without addressing all three factors enumerated above.” (Shapell, at pp. 235-236.)

CUSD and the Board argue that the fee study upon which the Board based its

resolution satisfied the three-factor test set forth in Shapell. We conclude that it did not.

The fee study began by failing to project the “total amount of new housing expected to be

built within the District.” (Shapell, supra, 1 Cal.App.4th at p. 235.) Instead, the fee

study simply stated that the amount of new residential development would be “in excess

of 133 residential units.” While precision is not required (Shapell, supra, 1 Cal.App.4th

at pp. 235-236), this vague and unrestricted figure is little better than saying that “some”

development is anticipated since it provides no guidance for CUSD and the Board to

determine whether new school facilities are needed due to the anticipated development.

CUSD and the Board claim that the mere fact that CUSD’s enrollment already

exceeded its capacity eliminated the need for any estimate of how much new

development was expected. Not so. The reason why a projection of the total amount of

new development is necessary is that this projection provides the basis for the estimate of

the new students who can be expected to be generated by the new development. The fee

study used its “in excess of 133 residential units” estimate to calculate that this amount of

residential development would produce at least 67 new students. Like the fee study’s

failure to estimate the total amount of new development, the fee study’s reliance on its

assertion that at least 67 new students would be generated by new development could not

provide a basis for the Board to determine whether new school facilities were needed.

Indeed, despite the fact that the fee study based its calculations on the cost of building

two new schools, CUSD and the Board do not dispute that even the total projected

enrollment increase (including both new students from new development and other new

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students) will not necessitate the construction of such schools. Consequently, the fee

study’s methodology lacked an evidentiary basis.

Without a realistic estimate of how many students would be generated by new

development, the fee study could not provide the requisite foundation for the Board to

decide what steps needed to be taken to accommodate projected enrollment increases.

While CUSD and the Board did not have to identify specific facilities that would be built

or make “concrete construction plans” (Garrick Development Co. v. Hayward Unified

School Dist. (1992) 3 Cal.App.4th 320, 335 (Garrick)), they did need to decide whether

or not new school facilities were needed and, if so, what type of facilities were needed

(ibid). In Garrick, for instance, the school district was “at or near capacity” in its

elementary and middle schools. (Garrick, at pp. 332-333.) The fee study in Garrick

projected that “approximately 16,400 dwelling units” would be developed within the

district during the time period in question and that these new dwelling units would

generate thousands of new students. (Garrick, at p. 326, fn. 4.) These projections

provided a reasonable basis for the school district to decide that multiple new schools

would be needed to accommodate the thousands of new students that were expected to be

generated by new development. (Garrick, at pp. 332-333.)

CUSD and the Board, in contrast, were indisputably not going to be building the

hypothetical new schools upon which the fee study premised the fees. And the fee study

provided no basis for the Board to decide whether new school facilities were needed or

what type of new or reconstructed school facilities might be required because the fee

study lacked quantified information about the total amount of new development that was

expected and the number of students it could be expected to generate. It was not enough,

as CUSD and the Board claim, that the Board stated in its resolution that the fees would

be used for “school facilities.” Government Code section 66001 requires that “the

facilities shall be identified.” (Gov. Code, § 66001, subd. (a)(2), italics added.) The fee

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study could not identify the cost on which to base the fees without identification of

facilities that would satisfy quantified needs.

CUSD and the Board argue that the fee study here must be deemed sufficient to

support their fees because the fee study in Garrick, which was found sufficient, “involved

the same general methodology” as the one here. We disagree. Here, unlike in Garrick,

the fee study made no quantifiable projection of the amount of new development that

could be expected, and the Board made no decision to construct new schools to

accommodate the unknown number of new students that might be generated by this

unknown amount of new development. The Board’s decision to enact a development fee

in this case is invalid because the Board did not decide that its enrollment increases

would necessitate the construction of new schools but nevertheless based the amount of

the development fee on the cost of building new schools. This discontinuity precluded

the Board from being able to demonstrate a reasonable relationship between the impact of

new development and the development fee. While courts defer to the reasonable

legislative choices made by school district boards, those boards still must comply with

the enabling statutes governing the fees that they impose. The Board did not do so here.

CUSD and the Board claim that, even if they failed to satisfy the three Shapell

factors, the fee must be upheld because they applied an “alternative” “reasonable

methodology” that was sufficient to support the fee. They insist that because CUSD’s

enrollment already exceeds its capacity “every single additional student generated by

development will result in a financial impact on the District.”

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We accept the validity of



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CUSD and the Board assert: “Since every student generated by development

would necessitate new or expanded facilities, each individual new student generates the

same per-student financial cost to the at-capacity school district.” Even if this were true,

that “financial cost” depends on what type of facilities will be used to accommodate those

students. The fee study did not consider this question but instead based its financial cost

calculation on hypothetical new schools that CUSD and the Board did not plan to use to

accommodate the new students generated by new development.

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this statement, but it does not satisfy the statutory requirement that CUSD and the Board

demonstrate a relationship between the amount of the fee and impact of development on

the need for new or reconstructed school facilities. Here, the fee study’s use of

hypothetical new schools that CUSD was not going to build as the financial premise for

calculating the fee was not a reasonable alternative methodology that could legally

support the fee imposed by the Board. Like the “in excess of 133 residential units” and

the at least 67 students, “a financial impact” lacks quantification. That “financial

impact” can only be quantified by using the Shapell factors or some other reasonable

methodology. The fee study did not do so.

CUSD and the Board claim that the superior court erred in concluding that the fees

could not be “recalculated.” No “recalculation” is possible since the fee study failed to

provide any of the data necessary to make such a calculation. The key missing element

was what new facilities would be necessary for the new students generated by new

residential development. The fee study failed to quantify the expected amount of new

development or the number of new students it would generate, did not identify the type of

facilities that would be necessary to accommodate those new students, and failed to

assess the costs associated with those facilities. The trial court did not err in finding that

recalculation was impossible under these circumstances.

Finally, CUSD and the Board maintain that the trial court prejudicially erred in

disregarding two declarations that it proffered. “It is well settled that extra-record

evidence is generally not admissible in non-CEQA traditional mandamus actions

challenging quasi-legislative administrative decisions.” (Western States Petroleum Assn.

v. Superior Court (1995) 9 Cal.4th 559, 574.) “Although extra-record evidence is not

admissible to contradict evidence upon which the administrative agency relied in making

its quasi-legislative decision, or to raise a question regarding the wisdom of that decision

[citation], it may be admissible to provide background information regarding the quasilegislative

agency decision, to establish whether the agency fulfilled its duties in making

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the decision, or to assist the trial court in understanding the agency’s decision.” (Outfitter

Properties, LLC v. Wildlife Conservation Bd. (2012) 207 Cal.App.4th 237, 251.)

CUSD submitted a declaration from James Crawford, a CUSD employee.

Crawford authenticated several documents, including a “Board Policy” adopting class

size standards and the Board’s collective bargaining agreement with the teacher’s

association, which specified class sizes. Crawford declared that CUSD’s enrollment

already exceeded its capacity by over 300 students in the 2011/2012 school year. CUSD

also submitted a declaration from Jack Schreder, who had prepared the fee study.

Schreder declared: “The per-student cost remains the same regardless of the number of

new units developed, with the exception that when the development count gets large

enough, land costs must be added in.” SummerHill objected to and moved to strike

portions of the Crawford and Schreder declarations, and the trial court “disregarded”

these declarations.

Since neither of these declarations provided the data that was missing from the fee

study, the trial court’s decision to disregard them was immaterial.

The judgment is affirmed.