1References to the Guidelines are to the state CEQA guidelines. (Guidelines, § 15000 et seq.) The Guidelines are binding on all public agencies in California in implementing the provisions of CEQA. (Guidelines, §§ 15000-15001.)
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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.)
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 (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 (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].)
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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 Jr. High
School (BJHS) (7-8). The designated receptor schools for Thomson, a K-6 school, were
four other K-6 schools: Henderson Elementary School, Skyline North Elementary
2 On February 14, 2013, there were 5,827 students enrolled in all District schools, nearly 1,500 fewer than during the 2005-2006 school year when 7,313 students were enrolled.
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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 resolution
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
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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 (Muzzy Ranch);
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
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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; 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; but see Muzzy Ranch, supra, 41 Cal.4th at p. 380
[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.) A project is exempt
from CEQA if (1) the project is exempt by statute (Pub. Resources Code, § 21080, subd.
(b); Guidelines, § 15061, subd. (b)); (2) the project is subject to one or more “categorical
exemptions” set forth in sections 15301 to 15333 of the Guidelines and the application of
the categorical exemption is not barred by an exception set forth in section 15300.2 of the
Guidelines; or (3) the project is subject to the “commonsense” exemption, which applies
when “‘it can be seen with certainty that there is no possibility that the activity in
7
question may have a significant effect on the environment’ . . . .” (Muzzy Ranch, supra,
41 Cal.4th at p. 380; San Lorenzo, supra, at pp. 1380-1381; Guidelines, § 15061, subd.
(b)(3).)
If an agency properly determines that a project is exempt from CEQA, it is not
required to subject the project to any further CEQA review. (Muzzy Ranch, supra, 41
Cal.4th at p. 380; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74; Guidelines,
§ 15002, subd. (k)(1).) And, if the agency approves or determines to carry out the
exempt project, it may but is not required to file a notice of exemption in order to shorten
the limitations period for challenging its exemption determination. (Guidelines,
§§ 15002, subd. (k)(1), 15062, subd. (a).) The filing of a notice of exemption triggers a
35-day limitations period for challenging the agency’s exemption determination; if no
notice of exemption is filed, a 180-day limitations period applies. (Guidelines, § 15062,
subd. (d); Apartment Assn. of Greater Los Angeles v. City of Los Angeles (2001) 90
Cal.App.4th 1162, 1171.)
If a project does not fall within a CEQA exemption, the agency must proceed to
the second step of the three-step CEQA review process and “‘conduct an initial study to
determine if the project may have a significant effect on the environment.’ ([Guidelines],
§ 15063, subd. (a).)” (Muzzy Ranch, supra, 41 Cal.4th at p. 380; Guidelines, § 15002,
subd. (k)(2) [“If the project is not exempt, the lead agency takes the second step and
conducts an initial study ([Guidelines,] Section 15063) to determine whether the project
may have a significant effect on the environment.”].) If, after conducting the initial
8
study, the agency concludes there is no substantial evidence that the project or any of its
aspects may cause a significant environmental effect, it must prepare a “negative
declaration” briefly describing the reasons supporting its determination. (Muzzy Ranch,
supra, at pp. 380-381; Guidelines, § 15063, subd. (b)(2).) If the agency concludes there
is substantial evidence that any aspect of the project may cause one or more significant
environmental effect, it must proceed to CEQA’s third step and prepare an environmental
impact report for the proposed project. (Muzzy Ranch, supra, at p. 381; Guidelines,
§ 15063, subd. (b)(1).) The agency may skip the initial study and prepare an
environmental impact report if it determines that an environmental impact report will
clearly be required for the project. (Guidelines, § 15063, subd. (a).)
Whether a project is categorically exempt from CEQA may require the agency to
determine whether one or more exceptions to the categorical exemption, set forth in
Guidelines section 15300.2, applies. (San Lorenzo, supra, 139 Cal.App.4th at pp. 1386-
1389.) “At the administrative level, once an agency ‘determines based on substantial
evidence in the record, that the project falls within a categorical exemption . . . , the
burden shifts to the challenging party . . . “‘to produce substantial evidence . . .’” . . . that
one of the exceptions to categorical exemption applies.’ [Citation.]” (Id. at p. 1389.)
In determining whether an exception applies, the agency is only required to
determine whether there is substantial evidence that the project may have the particular
environmental impacts described in the exception. (See Guidelines, § 15300.2.) By
contrast, in conducting an initial study, after the agency has determined that the proposed
9
project is not exempt from CEQA (either because no exemption applies or an exception
to a categorical exemption applies), the agency must determine whether the project may
have any significant environmental effects, and “[a]ll phases of project planning,
implementation, and operation must be considered in the initial study . . . .” (Guidelines,
§ 15063, subd. (a)(1).) In many cases, this distinction may make little to no practical
difference. As observed in East Peninsula, “the amount of analysis and study involved at
the preliminary review stage of determination of whether a project is exempt from CEQA
may be similar to that involved at the ‘second’ stage where the agency conducts an initial
study to determine whether the project has a significant effect on the environment.
(Guidelines, § 15002[, subd.] (k)).” (East Peninsula, supra, 210 Cal.App.3d at p. 173.)
Nonetheless, an agency’s determination that an exception to a categorical
exemption applies, during the preliminary review stage of the CEQA process, should not
be conflated with the conduct of an initial study in the second-step of the CEQA process.
An initial study may be much more broad-ranging than an exception determination, and
the Guidelines plainly distinguish between the two inquiries: “[An] . . . agency must first
determine whether an activity is subject to CEQA [i.e., the agency must first determine
whether an activity is a project and, if so, whether the project is exempt from CEQA]
before conducting an initial study.” (Guidelines, § 15060, subd (c).)
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B. Insufficient Evidence Supports the District’s Determination That the Closures and
Transfers Were Exempt from CEQA (Pub. Resources Code, § 21080.18; Guidelines,
§ 15314)
Public Resources Code section 21080.18 exempts from CEQA review “the closing
of any public school in which kindergarten or any of grades 1 through 12 is maintained or
the transfer of students from that public school to another school if the only physical
changes involved are categorically exempt under Chapter 3 [of the Guidelines]
(commencing with Section 15000) . . . .” (Italics added.) Public Resources Code section
21080.18 is not a true statutory exemption, but a categorical exemption because it only
applies “if the only physical changes involved” in the public school closure are
categorically exempt under the Guidelines. (See East Peninsula, supra, 210 Cal.App.3d
at pp. 166-169 [discussing legislative history preceding enactment of Pub. Resources
Code, § 21080.18].)
The Guidelines contain 33 classes of categorically exempt projects. (Guidelines,
§§ 15301-15333.) Each exempt class represents a class or category of projects that
“ordinarily” have no significant environmental effects. (North Coast Rivers Alliance v.
Westlands Water Dist. (2014) 227 Cal.App.4th 832, 851.) Categorical exemptions are
strictly construed, “in order to afford the fullest possible environmental protection.”
(Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141
Cal.App.4th 677, 697.) Unlike statutorily exempt projects, which are “absolute” and not
subject to exceptions, categorical exemptions are subject to exceptions in the Guidelines.
11
(Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209, 224;
Guidelines, § 15300.2.)
In finding that the closures of Hinkley and Thomson and the resulting transfers of
their students to the receptor schools were exempt from CEQA, the District relied on
Public Resources Code section 21080.18 and the class 14 exemption for “minor
The “significant effect” or “unusual circumstance” exception applies “where there
is a reasonable possibility that the activity will have a significant effect on the
environment due to unusual circumstances.” (Guidelines, § 15300.2, subd. (c), italics
added.) In Berkeley Hillside, our state Supreme Court held that, for the unusual
circumstance exception to apply, “it is not alone enough that there is a reasonable
possibility the project will have a significant environmental effect; instead, . . . there must
be ‘a reasonable possibility that the activity will have a significant effect on the
environment due to unusual circumstances.’” (Berkeley Hillside, supra, 60 Cal.4th at pp.
1097-1105.) The court explained: “[T]o establish the unusual circumstances exception,
it is not enough for a challenger merely to provide substantial evidence that the project
may have a significant effect on the environment, because that is the inquiry CEQA
requires absent an exemption. ([Pub. Resources Code,] § 21151.) Such a showing is
inadequate to overcome the [Secretary of the Natural Resources Agency]’s determination
that the typical effects of a project within an exempt class are not significant for CEQA
purposes. On the other hand, evidence that the project will have a significant effect does
tend to prove that some circumstance of the project is unusual. An agency presented with
22
such evidence must determine, based on the entire record before it—including contrary
evidence regarding significant environmental effects—whether there is an unusual
circumstance that justifies removing the project from the exempt class.” (Berkeley
Hillside, supra, 60 Cal.4th at p. 1105.)
IV. DISPOSITION
The judgment denying SOS’s writ petition is reversed. The matter is remanded to
the trial court with directions to issue a peremptory writ of mandate to the District,
consistent with the views expressed in this opinion. SOS shall recover its costs on
appeal. (Cal. Rules of Court, rule 8.278.)
CERTIFIED FOR PUBLICATION
KING J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
23
AI Brief
AI-generated · verify before citing
Holding. The court held that the District's determination that school closures and student transfers were categorically exempt from CEQA was unsupported by substantial evidence because the administrative record lacked data on the receptor schools' original student capacity.
Issues
Whether the District's school closures and student transfers were categorically exempt from CEQA under the 'minor additions' exemption.
Whether the administrative record contained sufficient evidence of the receptor schools' 'original student capacity' to support the exemption.
Whether the District's failure to limit student transfers to receptor schools rendered the exemption determination invalid.
Disposition. reversed
Quotations verified verbatim against the opinion
“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.”
“Without knowing the enrollment capacity of each receptor school, it was impossible for the District to properly determine that transfers would not cause the enrollment at any of the receptor schools to exceed 125 percent of the receptor school’s enrollment capacity”