In a published opinion filed September 2, 2015, the Fourth District Court of Appeal (Division 2) reversed the trial court’s judgment denying a writ petition challenging a school district’s determination that its closure of two schools and related student transfers were exempt from CEQA. Save Our Schools v. Barstow Unified School District Board of Education (2015) 240 Cal.App.4th 128. In directing on remand the issuance of a writ that would, at a minimum, mandate that the District void its exemption determination and reconsider the matter, the Court also held that the District could in further proceedings consider additional evidence not before it at the time it made its initial exemption decision, and that any challengers would have the opportunity to present additional evidence as well.

Due to declining enrollment and projected inability to meet its financial obligations, Respondent Barstow Unified School District Board of Education (District) decided in early 2013 to close two of its elementary schools (“Thompson” and “Hinkley”) and to transfer their approximately 600 students to a number of other designated “receptor” schools in the District. It determined the closures and related transfers were categorically exempt from CEQA under the Class 14 exemption for “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….” (14 Cal. Code Regs., § 15314; see Pub. Resources Code, § 21080.18 [exempting school closures or transfers “if the only physical changes involved are categorically exempt under [the CEQA Guidelines.”].) An “after-formed unincorporated association” (“SOS”) challenged the decision under CEQA; the closures and transfers went forward; the trial court denied the writ; and SOS timely appealed.

The Court of Appeal reversed, essentially because the District failed to “show its math” and thus substantial evidence did not support its determination that the closures qualified for the Class 14 exemption. Specifically, at the time District made the decision to close the schools, no evidence in the administrative record before it supported its determination that its action would not increase the “original student capacity” of any one of the “receptor schools” “by more than 25% or ten classrooms, whichever is less.” (14 Cal. Code Regs. § 15314.) While the record showed the current enrollments figures for the receptor schools, it did not contain any information reflecting the enrollment capacity of those schools before the transfers were made. Per the Court, this “critical gap in the evidence” made it “impossible… to properly determine that transfers would not cause the enrollment of any of the receptor schools to exceed 125 percent of the receptor school’s enrollment capacity, or require fewer than 10 portable or permanent classrooms to be added to the receptor school.”

Compounding the insufficiency of the evidence to support its exemption determination, the District did not impose any limits on the number of students who could transfer to any particular receptor schools, and instead represented to the public that the transferring students could attend any receptor school of their choice. The evidence in the record thus showed, for example, that if all transferring students chose to attend a particular receptor school (Skyline North), as expressly permitted by the District’s action, the actual enrollment at that school would more than double (from 422 to 969 students).

The Court further rejected the District’s attempt to rely on another categorical exemption, Guidelines § 15378(b)(5), which states that “[o]rganizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment” are not CEQA projects. Per the Court, the District conceded that student enrollment increases exceeding the thresholds of § 15314 could constitute significant impacts, so actions not meeting the requirements of that exemption for any receptor school would also fail to fall within the § 15378 exemption.

Interesting aspects of the Court of Appeal’s opinion include the following:

  • It serves as a helpful reminder that a lead agency seeking to rely on a categorical exemption from CEQA must pay close attention to the actual language of the exemption, and ensure that the record contains substantial evidence supporting its determination that its actions fits within that language.
  • In discussing CEQA’s three-step process, the opinion makes an interesting (albeit somewhat fuzzy) attempt to distinguish between the amount of study and analysis needed for an exemption determination, as compared to the “much more broad-ranging” initial study process applicable to non-exempt projects.
  • The opinion contains a brief discussion of CEQA’s mandatory, permissible and flexible writ remedies, intended to direct and guide the trial court in fashioning the appropriate writ after remand, and emphasizes that “[f]ollowing the [trial] court’s issuance of the peremptory writ on remand, the District may consider additional evidence not before it when it determined, at the [relevant] meeting of its board, that closures and transfers were exempt from CEQA.”
  • The opinion determines without elaboration that “[o]n the record before us” the “petition is not necessarily moot” due to the occurrence of the school closures and transfers.
  • To provide further guidance on remand, the opinion concludes with an interesting discussion of the burden of proof that SOS “or any other challengers” will bear to establish exceptions to a CEQA categorical exemption should the District again find one applicable (citing, inter alia, Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1097-1105), and further admonishes that “[t]he economic and social impacts of a project are not to be treated as significant effects on the environment.” (Citing 14 Cal. Code Regs., §§ 15131(a), 15064(f)(6).)


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