Fourth District Court of Appeal Re-Releases its Opinion Reversing the Denial of Petitioner Group’s Writ Petition

September 4th, 2015

By: Chris Butcher



Following rehearing on its own motion, the Fourth District Court of Appeal again reversed and remanded a case involving the closure of two public schools in the Barstow Unified School District (“BUSD” or “District”). (Save Our Schools v. Barstow Unified School Dist., 2015 Cal.App.LEXIS 779.) The court had previously vacated its July 14, 2015 unpublished opinion Save Our Schools v. Barstow Unified School Dist., 2015 Cal.App.Unpub. LEXIS 4926 on August 10, 2015.

The case involves a suit filed by Save Our Schools (“SOS”) challenging BUSD’s closure of two schools. BUSD closed the schools in 2013 after years of declining student enrollment in the school district. BUSD concluded its decision to close the schools was exempt from the California Environmental Quality Act (“CEQA”). Following the closures, SOS filed a petition for writ of mandate, alleging that insufficient evidence supported BUSD’s reliance on CEQA exemptions. The superior court denied their petition. On appeal, the Appellate Court reversed the judgment denying SOS’s petition. The court remanded the case to the trial court with directions to issue a peremptory writ of mandate to BUSD.

The court first provided an overview of CEQA’s three step process “to ensure that public agencies inform their decisions with environmental considerations.” The court indicated that at the preliminary review stage, the lead agency must determine whether an activity is a “project” and if so, whether the project is exempt from environmental review under CEQA. At the preliminary review stage, BUSD relied on Public Resources Code section 21080.18, exempting 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 student from that public school to another if the only physical changes involved are categorically exempt . . .” BUSD also relied on the class 14 exemption for “minor additions to schools.”

As defined in CEQA Guidelines section 15314, a minor addition to a school is defined as: (1) the addition of 10 of fewer classrooms; or (2) an increase in original student capacity of 25 percent or less. “Original student capacity” means the school’s physical space for housing students, or number of students that can be physically accommodated before the transfer. The court found that the administrative record failed to disclose the “[o]riginal student capacity” at any of the receptor schools. The court concluded it was possible some of the receptor schools were near capacity at the time of the closures and student transfers. The court stated this was a “critical gap in the evidence” that prevented BUSD from determining that school closures and the resulting transfers of their students were exempt from CEQA under the minor additions exemption.

The Court remanded the case to the trial court, concluding that the District violated CEQA because insufficient evidence supported its determination that school closures and resulting transfers were exempt from CEQA. Citing Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 425-435, the court indicated that following the trial court’s issuance of the peremptory writ on remand, the District may consider additional evidence not before it when determined that the closures and transfers were exempt from CEQA. If the District again determines that the closures and transfers were exempt from CEQA, the burden then shifts to SOS and those challenging the exemption determination to produce substantial evidence showing that an exception to the minor additions exemption applied. (Citing Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1104-1105.)

BUSD also argued that SOS’s petition was moot because the schools had been closed for two years at the time of the decision. The court disagreed. The court noted that, on remand, BUSD could determine that the closures were not exempt from CEQA, and the schools could be reopened or BUSD could adopt other mitigation to address adverse environmental effects—if any—of the closures and transfers.

Key Point:

Substantial evidence must support each element of a categorical exemption. Where, as in Save Our Schools, a critical gap exists in the evidence supporting an exemption determination, the court will reverse to allow the agency to reconsider their action based on substantial evidence.