Save Our Sch. v. Barstow Unified Sch. Dist. Bd. of Educ.

• Decision Date: 02 September 2015
• Docket Number: E060759
• Citation: 191 Cal.Rptr.3d 916,240 Cal.App.4th 128
• Court: California Court of Appeals Court of Appeals
• Parties: SAVE OUR SCHOOLS, Plaintiff and Appellant, v. BARSTOW UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION, Defendant and Respondent.

240 Cal.App.4th 128

191 Cal.Rptr.3d 916

SAVE OUR SCHOOLS, Plaintiff and Appellant

v.BARSTOW UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION, Defendant and Respondent.

E060759

Court of Appeal, Fourth District, Division 2, California.

Filed September 2, 2015

Johnson & Sedlack, Raymond W. Johnson, Temecula, Abigail A. Smith, Kimberly A. Foy, Cardiff, and Kendall Holbrook, for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, John W. Dietrich, Riverside, Jennifer D. Cantrell, Cerritos, Paul Z. McGlocklin, Riverside, and S. Pete Serrano, for Defendant and Respondent.

OPINION

KING, J.

I. INTRODUCTION

Defendant and respondent, Barstow Unified School District Board of Education (the District), approved closing two of its elementary schools, Thomson Elementary School (Thomson) and Hinkley Elementary School (Hinkley), and transferring their students to other District “receptor” schools. The District determined that the closures and transfers were exempt from environmental review under the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. ), because they fell within the categorical exemption for “minor additions” to schools (see Pub. Resources Code, § 21080.18 ; Cal.Code Regs., tit. 14, § 15314 (Guidelines) [school closures and student transfers resulting in “minor additions to existing schools” are categorically exempt from CEQA “where the addition does not increase original student capacity” of any receptor school “by more than 25% or ten classrooms, whichever is less.”] ).¹

A citizens group, plaintiff and appellant, Save Our Schools (SOS), petitioned the trial court for a peremptory writ setting aside the District's resolutions approving the closures and transfers and finding them exempt from CEQA. The petition was denied and SOS appeals, claiming: (1) insufficient evidence supports the District's determinations that the closures and transfers were exempt from CEQA, and (2) if the closures are exempt, then SOS met its burden showing that two exceptions to CEQA's categorical exemptions—the “cumulative impact[s]” and the “unusual circumstances” exceptions—applied. (Guidelines, § 15300.2, subds. (b), (c).)

We reverse and remand the matter with directions to the trial court to issue a peremptory writ (1) voiding the District's resolutions approving the school closures and student transfers and (2) directing the District to reconsider its determination that the closures and transfers were exempt from CEQA review. (Pub. Resources Code, § 21168.9 ; Code Civ. Proc., § 1094.5, subds. (e), (f).) On remand, the District may accept and consider additional evidence not before it when it made its original exemption determinations. (See Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 525–535, 128 Cal.Rptr.3d 658, 257 P.3d 81.)

The present administrative record contains insufficient evidence of the “original student capacity” (Guidelines, § 15314 ), or total enrollment before the transfers, of any of the receptor schools. It was therefore impossible for the District to determine, based on the record before it, that the closures and transfers would not increase the total student enrollment of any of the receptor schools beyond the levels allowed under the minor additions exemption. (East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155, 174, 258 Cal.Rptr. 147 (East Peninsula ) [because school district allowed students to choose which transferee school to attend, it was “impossible” for the district to “properly determine compliance with [Guidelines,] section 15314 ”]; San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1387–1389, 44 Cal.Rptr.3d 128 (San Lorenzo ) [proper compliance with Guidelines, § 15314 requires knowledge of receptor school's “original student capacity,” or physical capacity to house students before the transfers].)

II. BACKGROUND

At public meetings of its board in May, June, and December 2012, the District made it known that it was considering closing two of its schools, among other options, in order to meet its financial obligations in future school years. Student enrollment in the entire District had been declining since the 2006-2007 school year, and the District projected it would be unable to meet its financial obligations for the 2013-2014 and 2014-2015 school years unless it made substantial cuts in expenditures.

On February 22, 2013, the District held a “Hinkley School Reorganizational Meeting” at Hinkley. A notice of the meeting advised that enrollment in all District schools had declined by approximately 1,000 students since the 2006-2007 school year.² Then, at a February 26, 2013, public meeting of its board, the District addressed its superintendent's recommendation that it close both Hinkley and Thomson beginning in the 2013-2014 school year. At the meeting, the District informed the public that students from Hinkley and Thompson could choose to transfer to any one of several District “receptor” schools.

The designated receptor schools for Hinkley, a grade K-8 school, were Lenwood Elementary School (K-6), Skyline North Elementary School (K-6), and Barstow Junior High School (BJHS) (seventh through eighth grades). The designated receptor schools for Thomson, a K-6 school, were four other K-6 schools:

Henderson Elementary School, Skyline North Elementary School, Cameron Elementary School, and Crestline Elementary School. Thus, students from both Hinkley and Thomson could elect to transfer to Skyline North Elementary School.

A speaker at the February 26, 2013, board meeting asked what would happen if all of the students from Hinkley and Thomson chose to transfer to Skyline North Elementary School. District Superintendent Jeff Malan responded: “When we look at the number of students that are involved, I don't believe that would be the ... full capacity of the Skyline North [E]lementary [School].” Another speaker then commented: “It doesn't seem like the school capacity's been investigated enough.”

Near the close of the February 26 board meeting, the District adopted resolutions Nos. 29 and 30, approving, respectively, the closures of Thomson and Hinkley, for the 2013-2014 school year and subsequent years. The District estimated the closures would save the District $600,000 annually. In each resolution, the District found that the closures and resulting student transfers to the receptor schools were exempt from CEQA review pursuant to Public Resources Code section 21080.18 and the “minor additions” to schools exemption of Guidelines section 15314, which exempts from CEQA review “minor additions to existing schools within existing school grounds where the addition does not increase original student capacity by more than 25% or ten classrooms, whichever is less....” In adopting the resolutions, the board did not indicate that it would limit the number of students allowed to transfer to Skyline North Elementary School or to any of the other District receptor schools, in order to keep enrollment at the receptor schools below the levels allowed by the “minor additions” exemption. (Guidelines, § 15314.)

A notice of CEQA exemption for each closure was recorded on March 6, 2013. In March 2013, SOS, a self-described “after-formed unincorporated association” comprised of individuals “adversely affected by the [p]roject” and the District's “failure to comply with the law,” petitioned the trial court for a writ of mandate setting aside the District's resolutions approving the closures and transfers, including the District's determination that the closures and transfers were exempt from CEQA review. The petition also sought an injunction preventing the District from closing the two schools pending the adjudication of the petition.

The District closed the schools in the spring of 2013, shortly after the close of the 2012-2013 school year, and students from Hinkley and Thompson were transferred to the receptor schools beginning in the 2013-2014 school year. Following a January 2014 hearing, the trial court denied the petition. SOS timely appealed.

III. DISCUSSION

A. CEQA's Three-step Process

CEQA and the Guidelines establish a three-step process “to ensure that public agencies inform their decisions with environmental considerations.” (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380, 60 Cal.Rptr.3d 247, 160 P.3d 116 (Muzzy Ranch ); see Guidelines, § 15002, subd. (k).) An overview of CEQA's three-step process will aid in understanding the statutory and regulatory context in which the District determined that the two school closures and the resulting transfers of students to the receptor schools were exempt from CEQA review under section 15314 of the Guidelines.

The first step in the CEQA process is jurisdictional and requires the lead agency to conduct a preliminary review of the proposed activity to determine whether CEQA applies to the activity. (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 112, 62 Cal.Rptr.2d 612 ; Guidelines, §§ 15060, 15061.) At the preliminary review stage, the lead agency must make two determinations: (1) whether the proposed activity is a “project” within the meaning of CEQA and, if so, (2) whether the project is exempt from environmental review under CEQA. (Guidelines, § 15002, subd. (k)(1); San Lorenzo, supra, 139 Cal.App.4th at pp. 1372–1373, 1380, 44 Cal.Rptr.3d 128 ; but see Muzzy Ranch, supra, 41 Cal.4th at p. 380, 60 Cal.Rptr.3d 247, 160 P.3d 116 [noting that the second tier of the CEQA process concerns exemption determinations].)

“[F]or CEQA to apply, the activity or decision at issue must constitute a ‘project’ under the statute. CEQA applies only to ‘discretionary projects proposed to be carried out or approved by public agencies....' ( [Pub. Resources Code,] § 21080, subd. (a), italics added.)” (San Lorenzo, supra, 139 Cal.App.4th at p. 1376, 44...