Filed 1/24/17
                               CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 SIXTH APPELLATE DISTRICT

SAN JOSE UNIFIED SCHOOL DISTRICT et al.,                  H041088
                                                         (Santa Clara County
        Plaintiffs and Respondents,                       Super. Ct. No.1-13-CV-241695)

        v.

SANTA CLARA COUNTY OFFICE OF
EDUCATION et al.,

        Defendants and Appellants;

ROCKETSHIP EDUCATION et al.,

        Real Parties in Interest and Appellants.


        Government Code section 53094, subdivision (b) authorizes “the governing board
of a school district” to “render a city or county zoning ordinance inapplicable to a
proposed use of property by the school district,” under certain circumstances.1 The
parties to this appeal dispute whether a county board of education is a “governing board
of a school district” for purposes of section 53094.
        Appellants, the Santa Clara County Office of Education, the Santa Clara County
Board of Education2, Rocketship Education, and Rocketship Eight Charter School,
maintain that county boards of education may issue zoning exemptions pursuant to
section 53094. Consistent with that position, the Santa Clara County Board of Education
        1
         All further statutory references are to the Government Code unless otherwise
indicated. For convenience, we refer to section 53094, subdivision (b) as section 53094.
       2
         Respondents erroneously identified the Santa Clara County Board of Education
as the “Board of Trustees for the Santa Clara County Office of Education” in their
Petitions for Writ of Mandate.
(County Board) approved a resolution exempting from local zoning ordinances property
to be used by Rocketship Education for a charter school. Respondents, San Jose Unified
School District (the District) and Brett Bymaster, contend that county boards of education
have no authority to issue zoning exemptions under section 53094. Respondents
successfully sought a writ of mandate to set aside the resolution.
       We do not need to determine the precise meaning of section 53094 to resolve this
appeal. We can and will limit our analysis to the narrower question of whether
section 53094 authorizes county boards of education to issue zoning exemptions for
charter schools. We conclude it does not. As a result, we will affirm the judgment.
I.     BACKGROUND3
       A.     The Public School System
       The Legislature has a constitutionally mandated duty to provide a system of public
education. (Cal. Const., art. IX, § 5; Wells v. One2One Learning Foundation (2006) 39
Cal.4th 1164, 1195 (Wells).) Traditionally, the Legislature carried out that mandate by
establishing local school districts. (Today‟s Fresh Start, Inc. v. Los Angeles County
Office of Education (2013) 57 Cal.4th 197, 205 (Today‟s Fresh Start); Butt v. State of
California (1992) 4 Cal.4th 668, 681 [“Local districts are the State‟s agents for local
operation of the common school system”].) Since 1992, the Legislature also has



       3
          The District‟s request for judicial notice filed on December 21, 2015 is denied.
The District requests judicial notice of an amicus curiae brief that California Charter
Schools Association filed in a criminal appeal, People v. Selivanov (2016) 5 Cal.App.5th
726. California Charter Schools Association, which also has filed an amicus curiae brief
in this case, opposes the request. We deny the request to take judicial notice because the
brief is not relevant to our resolution of the appeal. (Jordache Enterprises, Inc. v.
Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial
notice of materials not “necessary, helpful, or relevant”].)
        Appellants‟ request for judicial notice filed on October 6, 2015 is granted. (Evid.
Code, § 452, subds. (c) & (h)).


                                             2
authorized the creation of charter schools, which are part of the public school system but
offer an alternative to district-run schools. (Today‟s Fresh Start, supra, at pp. 205-206.)
       The Constitution calls for the election or appointment of a superintendent of
schools and a board of education for each county. (Cal. Const. Art. IX, §§ 3, 7.) Among
other things, county superintendents and county boards of education are authorized to
establish and maintain emergency elementary schools (Educ. Code, § 1920); community
schools (id., § 1980); juvenile court schools (id., § 48645.2); child development programs
(id., § 8320); and regional occupational centers providing education and training in career
technical courses (id., § 52301).
       The county superintendent is the head of the county office of education; the
county board of education is its governing board. (Today‟s Fresh Start, supra, 57 Cal.4th
at p. 207, fn. 4.) Each of the state‟s 58 counties has a county office of education. County
offices of education support school districts by, among other things, providing or helping
formulate new curricula and designing business and personnel systems.

       B.     The Santa Clara County Office of Education and the Santa Clara County
              Board of Education
       The Santa Clara County Office of Education (County Office) provides support
services to Santa Clara County‟s 31 school districts. The County Office also operates
preschool and child development programs, provides environmental education to fifth
and sixth graders, partners with districts in running their own special education programs,
provides regional occupational program services, coordinates services for foster and
homeless youth, monitors County-approved charter schools, and provides educational
programs for children of migrant families. The County Office operates 144 school sites,
which have a total enrollment of 6,789 students.
       The County Board is the elected governing body of the County Office. According
to the County Office‟s 2012 Annual Budget Report, the County Board‟s responsibilities
include, but are not limited to, conducting regularly scheduled public meetings, reviewing


                                             3
and adopting the annual budget of the County Office, appointing the County
Superintendent of Schools, resolving school district attendance and expulsion appeals,
adopting textbooks for instructional programs operated by the County Office, and ruling
on charter school petitions received by the County Office.
       C.     Charter Schools
       In 1992, the Legislature enacted the Charter Schools Act (Educ. Code, § 47600 et
seq.) “to provide opportunities for teachers, parents, pupils, and community members to
establish and maintain schools that operate independently from the existing school
district structure . . . .” (Id., § 47601.) In authorizing the creation of such charter schools,
the Legislature intended “to improve learning; create learning opportunities, especially
for those who are academically low-achieving; encourage innovative teaching methods;
create new opportunities for teachers; provide parents and students expanded choices in
the types of educational opportunities available; hold the charter schools accountable for
meeting quantifiable outcomes; and provide „vigorous competition within the public
school system to stimulate continual improvements in all public schools.‟ ” (California
School Bds. Assn. v. State Bd. of Education (2010) 186 Cal.App.4th 1298, 1306, citing
Educ. Code, § 47601.)
       Charter schools “can be created in one of five ways: By application to a school
district ([Educ. Code,] § 47605), by application for a county charter to a county board of
education (§§ 47605.5, 47605.6), by appeal of a denial by a school district to a county
board of education (§ 47605, subd. (j)(1)), by appeal of a denial by a county board to the
[State] Board [of Education] (ibid.), or by application for a state charter to the [State]
Board [of Education] (§ 47605.8).” (California School Boards Assn. v. State Bd. of
Education (2015) 240 Cal.App.4th 838, 852-853.) Charter schools operate
independently. (Today‟s Fresh Start, supra, 57 Cal.4th at p. 206.) However, the
chartering body (i.e., the school district, county board of education, or State Board of



                                               4
Education) is obligated to oversee each charter school under its authority. (Wilson v.
State Bd. of Education (1999) 75 Cal.App.4th 1125 (Wilson); Educ. Code, § 47604.32.)
       Charter schools are part of the public school system. (Wilson, supra, 75
Cal.App.4th at pp. 1139-1140; Educ. Code, § 47615, subd. (a)(2).) As such, “they are
eligible equally with other public schools for a share of state and local education
funding.” (Today‟s Fresh Start, supra, 57 Cal.4th at p. 206.) Charter schools receive
funding “ „based on the number of students they recruit and retain at the expense of the
traditional system.‟ ” (Id. at p. 207.) Thus, charter schools and district-run public
schools are in direct competition for students and dollars.
       “In 2000, California voters enacted Proposition 39, which requires school districts
to share their facilities with charter schools so that charter school students have access to
facilities „reasonably equivalent‟ to those available to other public school students.”
(California Charter Schools Assn. v. Los Angeles Unified School Dist. (2015) 60 Cal.4th
1221, 1226-1227; Educ. Code, § 47614, subd. (b).)

       D.     Rocketship Education, Rocketship Eight Charter School, and the
              Resolution
       Rocketship Education (Rocketship) is a network of elementary charter schools
targeting low-income students and those who are below basic proficiency on state exams.
The County Board has granted Rocketship a countywide charter to operate up to 25
charter schools.
       Rocketship proposed to locate one of its charter schools on property (the Property)
owned by the City of San Jose (the City). The Property is located in the District and in
the County Office‟s jurisdiction. Use of the Property for a school is not permitted by the
City‟s General Plan (which designates the Property as open space, parklands, and habitat)
or its zoning ordinance (which zones the Property light industrial). Therefore,
Rocketship requested that the County Board and the County Office exempt the Property
from the City‟s General Plan and zoning ordinance. On January 23, 2013, the County


                                              5
Board approved a resolution (the Resolution) exempting the Property from the City‟s
General Plan and zoning ordinance pursuant to section 53094.
       E.     Respondents Seek to Set Aside the County Board’s Resolution
       The District filed a petition for a traditional writ of mandate under Code of Civil
Procedure section 1085 and a complaint for declaratory relief on February 22, 2013. It
sought rescission of the Resolution and a declaration that only school districts, not county
boards of education, have the authority to invoke section 53094. Several days later,
Bymaster filed a separate petition for writ of mandate requesting similar relief.4 The
matters were consolidated.
       F.     Trial Court Ruling
       In a March 7, 2014 statement of decision, the trial court ruled that the County
Board lacked the authority to invoke section 53094. The court concluded that school
districts and county boards of education are “tasked with generally different
responsibilities” and reasoned that, given those differences, the Legislature would have
specifically stated an intent “to grant the power to override local zoning to county boards
of education.” The court entered judgment against appellants on April 7, 2014. That
same day, the court issued a Peremptory Writ of Mandate directing the County Board to
rescind the Resolution or take official action denying Rocketship‟s request for an
exemption from local zoning requirements.
       Appellants timely appealed. The California Charter Schools Association has
submitted an amicus curiae brief in support of appellants. The League of California
Cities has filed an amicus curiae brief in support of respondents.




       4
         Bymaster owns property adjacent to the Property. On appeal, he joins in the
District‟s respondent‟s brief pursuant to rule 8.200, subdivision (a)(5) of the California
Rules of Court.


                                             6
II.    DISCUSSION
       A.     Standard of Review
       “ „ “In reviewing a trial court‟s judgment on a petition for writ of ordinary
mandate, we apply the substantial evidence test to the trial court‟s factual findings[, if
any.]” [Citation.] . . . We independently review findings on legal issues and the
interpretation of a statute is a legal issue subject to de novo review.‟ ” (Fry v. City of Los
Angeles (2016) 245 Cal.App.4th 539, 549 (Fry).)
       “An agency interpretation of the meaning and legal effect of a statute is entitled to
consideration and respect by the courts . . . .” (Yamaha Corp. of America v. State Bd. of
Equalization (1998) 19 Cal.4th 1, 7 (Yamaha).) Thus, we “independently judge the text
of the statute, taking into account and respecting the [County Board‟s] interpretation of
its meaning . . . .” (Ibid.) Below, we consider the degree of deference, if any, to which
the County Board‟s interpretation is entitled. (Infra, Part II.C.5.)
       The parties disagree as to whether the trial court made any findings of fact.
Appellants contend it did not. Respondents maintain that deference is owed both to the
trial court‟s factual findings and its conclusions of law, and they identify four
determinations to which we must defer. In fact, most of those determinations are legal
conclusions to which we owe no deference. (Fry, supra, 245 Cal.App.4th at p. 549.) In
reviewing the statement of decision, we have identified only one factual finding: “[t]he
County Board of Education does not have the unique educational task of mass public
education that a school district has.” We need not decide whether that finding is
supported by substantial evidence because our construction of section 53094 does not
depend on whether county boards of education provide mass public education.
       B.     Principles of Statutory Construction
       “ „As in any case involving statutory interpretation, our fundamental task here is to
determine the Legislature‟s intent so as to effectuate the law‟s purpose.‟ [Citation.] „We
begin with the plain language of the statute, affording the words of the provision their

                                              7
ordinary and usual meaning and viewing them in their statutory context, because the
language employed in the Legislature‟s enactment generally is the most reliable indicator
of legislative intent.‟ [Citations.] The plain meaning controls if there is no ambiguity in
the statutory language. [Citation.]” (People v. Cornett (2012) 53 Cal.4th 1261, 1265.)
“A statutory provision is ambiguous if it is susceptible of two reasonable interpretations.”
(People v. Dieck (2009) 46 Cal.4th 934, 940.) “[I]f the language allows more than one
reasonable construction, we may look to such aids as the legislative history of the
measure and maxims of statutory construction. In cases of uncertain meaning, we may
also consider the consequences of a particular interpretation, including its impact on
public policy. [Citations.]” (Wells, supra, 39 Cal.4th at p. 1190.) But “[w]hen statutory
language is clear and unambiguous, there is no need for construction and courts should
not indulge in it. [Citations.]” (People v. Overstreet (1986) 42 Cal.3d 891, 895.)
       C.     Analysis
              1.     Plain Meaning
       Section 53094 provides, in relevant part: “the governing board of a school
district . . . by a vote of two-thirds of its members, may render a city or county zoning
ordinance inapplicable to a proposed use of property by the school district. The
governing board of the school district may not take this action when the proposed use of
the property by the school district is for nonclassroom facilities, including, but not limited
to, warehouses, administrative buildings, and automotive storage and repair buildings.”
At issue here is the meaning of the phrase “the governing board of a school district.”
Appellants contend that this phrase refers to any public agency that operates public
schools, including county boards of education. Respondents maintain that it refers more




                                              8
narrowly to the governing boards of local school districts, as they are described in the
Education Code.5
       The Government Code does not define the phrase “governing board of a school
district,” or the term “school district,” for purposes of section 53094. In the absence of a
statutory definition, we may look to dictionaries to ascertain the ordinary, usual meaning
of a word or phrase. (Heritage Residential Care, Inc. v. Division of Labor Standards
Enforcement (2011) 192 Cal.App.4th 75, 83.)
       We begin with the term “governing board.” The Oxford English Dictionary
defines “to govern” as “[t]o direct and control the actions and affairs of.” (Oxford
English Dict. (2016) < http://www.oed.com> [as of 1/24/17].) The Merriam-Webster
Online Dictionary defines “govern” as “to officially control and lead (a group of people):
to make decisions about laws, taxes, social programs, etc., for (a country, state, etc.).”
(Merriam-Webster‟s Online Dict. (2016) <http://www.merriam-webster.com/dictionary>
[as of 1/24/17].) The Oxford English Dictionary defines “board” as “the recognized word
for a body of persons officially constituted for the transaction or superintendence of some
particular business . . . .” (Oxford English Dict., supra, < http://www.oed.com> [as of
1/24/17].) Black‟s Law Dictionary defines “board” as “[a] group of persons having
managerial, supervisory, or advisory powers.” (Black‟s Law Dict. (10th ed. 2014).) The
foregoing dictionary definitions reveal that the ordinary meaning of “governing board” is
“body that controls or manages.”
       Turning to the term “school district,” the Merriam-Webster Online Dictionary
defines that term as “a unit for administration of a public-school system often comprising
several towns within a state.” (Merriam-Webster‟s Online Dict., supra,

       5
         “ „[I]n line with the basic rule on the use of extrinsic aids, other statutes may not
be resorted to if the statute is clear and unambiguous.‟ ” (People v. Honig (1996) 48
Cal.App.4th 289, 327.) Therefore, we must determine whether section 53094 is
ambiguous before turning to the Education Code.


                                               9
<http://www.merriam-webster.com/dictionary> [as of 1/24/17].) The Oxford English
Dictionary defines “school district” as “a geographical area, typically comprising several
towns, in which public schools are jointly administered.” (Oxford English Dict., supra,
<http://www.oed.com> [as of 1/24/17].) Black‟s Law Dictionary defines “school
district” as “[a]n area within a particular state demarcated for the governance of all the
public schools within that area . . . .” (Black‟s Law Dict. (10th ed. 2014).) These
dictionary definitions indicate that the ordinary meaning of “school district” is “a region
in which the public schools are under common management.”
       Thus, dictionaries suggest that the phrase “governing board of a school district”
means the “body that controls or manages public schools in a particular region.”
However, the term “school district” might also reasonably be construed more narrowly to
refer only to those entities commonly referred to as “school districts.” Thus, the meaning
of the phrase “governing board of a school district” in section 53094 is ambiguous and
we may consider extrinsic aids.
              2.     Legislative History
       “ „Both the legislative history of the statute and the wider historical circumstances
of its enactment may be considered in ascertaining the legislative intent.‟ ” (McCarther
v. Pacific Telesis Group (2010) 48 Cal.4th 104, 110.) The events motivating the
enactment of section 53094 are instructive.
                     a.     Hall and Town of Atherton
       The Legislature enacted section 53094 and a number of related provisions in
response to Hall v. City of Taft (1956) 47 Cal.2d 177 (Hall) and Town of Atherton v.
Superior Court (1958) 159 Cal.App.2d 417 (Town of Atherton). (City of Santa Clara v.
Santa Clara Unified Sch. Dist. (1971) 22 Cal.App.3d 152, 157 (City of Santa Clara);
(City of Santa Cruz v. Santa Cruz City School Bd. of Education (1989) 210 Cal.App.3d 1,
5 (City of Santa Cruz).) In Hall, our high court held that the construction of school
buildings by school districts was not subject to local building regulations. The court

                                              10
rested its decision on two independent grounds. First, the court concluded, based on a
number of constitutional provisions, that “[t]he public schools of this state are a matter of
statewide rather than local or municipal concern” (Hall, supra, 47 Cal.2d at p. 179); “the
power of the state Legislature over the public schools is plenary, subject only to any
constitutional restrictions” (id. at pp. 180-181); and “[s]chool districts are agencies of the
state for the local operation of the state school system.” (Id. at p. 181.) From those
conclusions, the court reasoned that when the state, through its school districts, “engages
in such sovereign activities as the construction and maintenance of its buildings, . . . it is
not subject to local regulations unless the Constitution says it is or the Legislature has
consented to such regulation.” (Id. at p. 183.) Second, the court reasoned that the state
had occupied the field of school building regulation, such that conflicting local
regulations were invalid. (Id. at p. 184.) For that conclusion, the Hall court noted that
“numerous comprehensive building regulations contained in the Education Code and the
rules and regulations of the Division of Architecture” govern the construction of school
buildings. (Id. at p. 188.)
       Town of Atherton applied Hall to hold that school districts were not required to
comply with municipal zoning ordinances in designating school locations. The court‟s
reasoning was two-fold: (1) the location and acquisition of a school site is a sovereign
activity of the state (Town of Atherton, supra, 159 Cal.App.2d at p. 428) and (2) the state
has occupied the field of school site location (id. at p. 422).
                      b.      The Legislative Response
       Between 1957 and 1959, the Assembly Interim Committee on Municipal and
County Government studied “the problems resulting from the State Supreme Court
decision in the case of Hall v. City of Taft.” (Problems of Local Government Resulting
from the Hall v. City of Taft Case Decision, 6 Assem. Interim Com. Rep. No. 8,
Municipal and County Government (1959) p. 5, 1 Assem. J. Appendix (1959); City of
Santa Clara, supra, 22 Cal.App.3d at p. 158, fn. 3.) Witnesses the Assembly Interim

                                              11
Committee interviewed expressed concern that Hall had immunized a large number of
state agencies from local regulation, leaving numerous activities entirely unregulated. By
contrast, most witnesses agreed with Hall‟s decision to immunize school districts from
complying with local regulations, given that the state had established comprehensive
regulations governing school construction. Witnesses reasoned that “uniformity was
desirable in school construction in order to attain the highest level of safety.” Witnesses
“believed school construction should be in a category of its own since it is so closely
regulated by the State,” and they recommended that the Legislature “[p]rovide that only
school districts remain under the immunity provisions of the [Hall] decision.”
       In response to Hall and Town of Atherton, the Legislature “in effect, consented to
local regulation [of state agencies] by adopting article 5, „Regulation of Local Agencies
by Counties and Cities,‟ in chapter 1, title 5 of the Government Code, sections 53090
through 53095.” (City of Santa Cruz, supra, 210 Cal.App.3d at pp. 5-6.) Section 53091
requires local state agencies to comply with city or county zoning ordinances.
Section 53094 allows school districts to exempt themselves from such regulations.
       Based on the Assembly Interim Committee‟s report, the court in City of Santa
Clara concluded that “[s]ections 53090 through 53095 were primarily designed to insure
that . . . local agencies [other than school districts] . . . could not claim exemption from
city and county zoning requirements by virtue of the language contained in Hall . . . .”
(City of Santa Clara, supra, 22 Cal.App.3d at p. 158, fn. 3.) That court further concluded
that, in section 53094, “the Legislature deliberately accorded different treatment to school
districts than to other local agencies because it was well aware that school construction
was subject to almost complete control by the state.” (City of Santa Clara, supra, at
p. 158, fn. 3.)
       This court has noted that section 53094 does not grant school districts “absolute[]
immun[ity] from local control . . . [. R]ather than grant absolute immunity from or give
unqualified consent to local control, the Legislature in section 53094 struck a balance,

                                              12
though not equal, between state educational and local regulatory interests and control.”
(City of Santa Cruz, supra, 210 Cal.App.3d at p. 6.) “The Legislature has since
fine-tuned this balance” (ibid.), amending section 53094 three times since 1977.
(Stats. 1984, ch. 657, § 1; Stats. 1990, ch. 275 (A.B. 2781), § 1; Stats. 2001, ch. 396
(A.B. 1367), § 2.)

              c.      Allowing the County Board to Invoke Section 53094 Here Would Be
                      Inconsistent With the Legislature‟s Intent
       Hall and Town of Atherton sought to prevent local interference with the state‟s
sovereign activities of school construction and school location by immunizing school
districts, the entities the state had empowered to carry out those sovereign activities on its
behalf, from local regulation. (Hall, supra, 47 Cal.2d at p. 181 [“[s]chool districts are
agencies of the state for the local operation of the state school system”]; Town of
Atherton, supra, 159 Cal.App.2d at p. 428 [“the state has expressly granted the power of
location to its agencies, the school districts”].) In enacting section 53094, the Legislature
preserved the immunity from local regulation that Hall and Town of Atherton accorded to
school districts. Thus, like the Hall and Town of Atherton courts, the Legislature
intended to forestall local obstruction of state-sanctioned school construction and school
location.
       Here, the County Board sought to employ section 53094 in connection with a
proposed location for a charter school. While county boards of education are authorized
to issue charters and oversee charter schools, it is local school districts that are obligated
to provide facilities to charter schools. (Educ. Code, § 47614, subd. (b).) The state has
not tasked county boards of education with acquiring sites for charter schools; to the
extent county boards of education do so, they are not carrying out a sovereign activity on




                                              13
behalf of the state.6 It follows, then, that empowering county boards of education to issue
zoning exemptions for charter school facilities does not advance the purpose of section
53094—namely, preventing local interference with the state‟s sovereign activities. For
the foregoing reasons, the legislative history convinces us that section 53094 does not
authorize county boards of education to issue zoning exemptions for charter school
facilities. None of appellants‟ remaining arguments persuades us otherwise, as discussed
below.
               3.     The Permissive Code
         Appellants urge us to consider Education Code sections 35160 and 35160.2 in
construing section 53094. Education Code section 35160, known as the “permissive code
section,” was enacted in 1976. (Hartzell v. Connell (1984) 35 Cal.3d 899, 915-916
(Hartzell).) It provides: “the governing board of any school district may initiate and
carry on any program, activity, or may otherwise act in any manner which is not in
conflict with or inconsistent with, or preempted by, any law and which is not in conflict
with the purposes for which school districts are established.” (Educ. Code, § 35160.)
“Prior to the effective date of section 35160, local school districts possessed little, if any,
power to act without express legislative or administrative authorization. [Citation.]
Section 35160 provides local districts with more flexibility.” (Hartzell, supra, at p. 915.)
In 1986 the Legislature enacted Education Code section 35160.2. (Stats. 1986, ch. 1124,
§ 3.) It provides that, “[f]or the purposes of Section 35160, „school district‟ shall include
county superintendents of schools and county boards of education. [¶] This section shall
be interpreted to be declaratory of existing law.” (Educ. Code, § 35160.2.)


         6
         Appellants note that county boards of education are obligated to deny a petition
for a countywide charter school if the petition does not provide a comprehensive
description of the proposed location of the charter school facility. (Educ. Code,
§ 47605.6, subd. (b)(5)(D).) But that obligation does not require county boards of
education to identify or secure such locations.


                                              14
       According to appellants, “the permissive code offers critical insight into how the
Legislature construes the term „school district‟ in light of the evolving authority of county
boards of education and county superintendents of schools to operate public schools.”
Their view appears to be that the Legislature has come to view county boards of
education and school districts as possessing the same powers, such that we should
construe “the governing board of a school district” in section 53094 as referring to county
boards of education. If accepted, that reasoning would require courts to construe the
phrase “the governing board of a school district” as including county boards of education
throughout the Education Code. Such an interpretation would effectively read out of the
Education Code a number of provisions—specifically, those indicating that a county
board of education is the governing board of a school district in limited circumstances.
(Educ. Code, §§ 35160.2 [school district includes county boards of education for
purposes of the permissive code]; 44944, subd. (c)(3) [“If the county board of education
is also the governing board of the school district …”]; 42127, subd. (i) [“Any school
district for which the county board of education serves as the governing board of the
school district…”]; 42131, subd. (f) [“Any school district for which the county board of
education serves as the governing board of the school district”]; 41020, subd. (m)(3)
[“The Superintendent shall report annually to the Controller on his or her actions to
ensure that . . . each county board of education that serves as the governing board of a
school district . . .]; 1984 [county board of education “deemed to be a school district”
when “maintaining a county community school”]; 1906 (“[t]he county board of education
shall have the same powers and duties with respect to such schools [for prisoners] . . . as
the governing board of a school district would have were such schools maintained by a
school district”].) We decline to adopt a statutory interpretation that would render those
enactments mere surplusage.7 (City of Huntington Beach v. Board of Administration

       7
         Appellants suggest that those provisions should be read out of the statute. For
       (continued)

                                             15
(1992) 4 Cal.4th 462, 468 [“legislation must be construed as a whole while avoiding an
interpretation which renders any of its language surplusage”].)
              4.     Our Construction Does Not Produce Absurd Results
       Another “fundamental rule[] of statutory construction is that a law should not be
applied in a manner producing absurd results, because the Legislature is presumed not to
intend such results.” (Fireside Bank Cases (2010) 187 Cal.App.4th 1120, 1129.)
However, “ „[i]f [a] construction does not result in patently absurd results, we may not
construe a statute contrary to its plain language and ostensible intent merely because we
disagree with the wisdom thereof.‟ ” (Fireman‟s Fund Ins. Co. v. Superior Court (2011)
196 Cal.App.4th 1263, 1280.)
       Appellants say our interpretation of section 53094 would lead to an absurd result:
an uneven playing field on which local school districts have a competitive advantage—
the zoning exemption power—over charter schools authorized by county boards of
education. But appellants ignore the fact that Education Code section 47614,
subdivision (b) makes local school districts, rather than the county board of education,
responsible for providing facilities to county-authorized charter schools. Those facilities
must be “sufficient for the charter school to accommodate all of the charter school‟s in-

that view, they rely on a 1986 Education Code study carried out at the behest of the
Legislative Analyst in connection with Senate Bill 998 (1987). That study concluded that
the Education Code contains a number of provisions granting school districts specific
authority that are unnecessary given the Code‟s permissive nature. According to
appellants, “there is no indication that” provisions of the Education Code granting county
boards of education the authority of school districts in limited circumstances (e.g., Educ.
Code, §§ 1984, 1906) “were actually needed or that they were intended to revoke or
modify the existing powers of county boards.” In other words, appellants opine that
those Education Code provisions were unnecessary because county boards of education
already had the powers accorded school districts. The legislative study on which
appellants rely does not mention any of the relevant Education Code sections specifically
(i.e., Educ. Code, §§ 44944, subd. (c)(3); 42127, subd. (i); 1984; 1906). Needless to say,
it is a very thin reed on which to read those provisions out of the statute and we decline to
do so.


                                             16
district students in conditions reasonably equivalent to those in which the students would
be accommodated if they were attending other public schools of the district.” (Educ.
Code, § 47614, subd. (b).) Thus, there is no risk that charter schools will be deprived of
adequate facilities as a result of this decision.
       One might question the wisdom of the legislative scheme, given the competitive
relationship between local school districts and charter schools.8 But the scheme,
approved by the electorate in 2000, does not prevent charter schools from competing with
school district schools, as the Legislature intended in enacting the Charter Schools Act.
(Prop. 39, § 6, operative Nov. 8, 2000, approved Nov. 7, 2000).) Accordingly, we see no
absurdity and decline to rewrite section 53094 under the absurd consequences doctrine.
              5.      Our Construction Does Not Violate the Constitution
       “ „It is the rule that where a statute or ordinance is susceptible of two
constructions, one of which will render it constitutional and the other unconstitutional, in
whole or in part, the court will adopt the construction which, without doing violence to
the reasonable meaning of the language used, will render it valid in its entirety, or free
from doubt as to its constitutionality, even though the other construction is equally
reasonable.‟ ” (In re Huddleson (1964) 229 Cal.App.2d 618, 624.) The foregoing
principle of statutory construction requires us, if possible, to construe section 53094 such
that it is constitutionally valid. (Eller Outdoor Advertising Co. v. Board of Supervisors
(1979) 89 Cal.App.3d 76, 81-82.)
       Article IX, section 6 of the Constitution states, in relevant part: “The Public
School System shall include all kindergarten schools, elementary schools, secondary
       8
          Amicus curiae California Charter Schools Association raises some of the
criticisms that can be leveled at the current legislative scheme, which pits school districts
and charter schools against one another but requires charter schools to rely on school
districts for charters and facilities. California Charter Schools Association maintains that
charter schools need greater independence from school districts in order to achieve the
goals of the Charter School Act. That argument is better directed to the Legislature.


                                               17
schools, technical schools, and State colleges, established in accordance with law and, in
addition, the school districts and the other agencies authorized to maintain them. No
school or college or any other part of the Public School System shall be, directly or
indirectly, transferred from the Public School System or placed under the jurisdiction of
any authority other than one included within the Public School System.”
       According to appellants, any construction of section 53094 under which county
boards of education cannot issue zoning exemptions violates article IX, section 6 of the
Constitution by giving cities the right to exclude (and thereby control) county-run public
schools. In the context of county-chartered charter schools, there is no risk of such
exclusion given the obligation of the school district to provide facilities. (Educ. Code,
§ 47614, subd. (b).) Thus, control over county-chartered charter schools remains
squarely in the Public School System under our construction of section 53094.
              6.      Administrative Construction
       We may properly consider administrative construction of section 53094 as an aid
to judicial interpretation. (Nativi v. Deutsche Bank National Trust Co. (2014) 223
Cal.App.4th 261, 280.) “An agency interpretation of the meaning and legal effect of a
statute is entitled to consideration and respect by the courts . . . .” (Yamaha, supra, 19
Cal.4th at p. 7.) “Depending on the context, [such an interpretation] may be helpful,
enlightening, even convincing[, or it may] . . . be of little worth.” (Id. at pp. 7-8.)
“Whether judicial deference to an agency‟s interpretation is appropriate and, if so, its
extent—the „weight‟ it should be given—is . . . fundamentally situational.” (Id. at p. 12.)
       Yamaha set forth two categories of factors that are relevant to a court‟s assessment
of the weight to be afforded to an agency‟s informal statutory interpretation. (Fonseca v.
City of Gilroy (2007) 148 Cal.App.4th 1174, 1193.) “First, there are factors indicating a
comparative interpretive advantage the agency has over the court due to, for example, the
agency‟s authorship of the regulation at issue or the technical nature of the legal text
under consideration.” (Ibid.) Here, there are no factors present suggesting county boards

                                              18
of education have an advantage over courts in interpreting section 53094, as that
provision is not “technical, obscure, complex, open-ended, or entwined with issues of
fact, policy, and discretion.” (Yamaha, supra, 19 Cal.4th at p. 12.)
       The second category of factors to be considered are “those suggesting the agency‟s
interpretation is likely to be correct.” (Yamaha, supra, 19 Cal.4th at p. 13.) They include
“indications of careful consideration by senior agency officials . . . , evidence that the
agency „has consistently maintained the interpretation in question, especially if [it] is
long-standing‟ . . . , and indications that the agency‟s interpretation was contemporaneous
with legislative enactment of the statute being interpreted.” (Ibid.) Appellants contend
that they presented evidence of a consistent and longstanding use of the section 53094
zoning exemption by county boards of education. We disagree with their assessment of
the evidence.
       Appellants presented evidence that six county boards of education invoked the
section 53094 zoning exemption on 10 occasions between 1976 and 2013. Three of those
occasions involved community schools. A county board of education is deemed to be a
school district in that context. (Educ. Code, § 1984 [county board of education “deemed
to be a school district” when “maintaining a county community school”].) Therefore,
those three uses of the zoning exemption power were appropriate under our construction
of section 53094 and offer appellants no support.9 The remaining seven exemptions were
issued by four different county boards; one of those exemptions was issued in the charter


       9
         A 1996 Attorney General Opinion cited by amicus curiae the California Charter
Schools Association does not support appellants for the same reason. Amicus curiae
contends the Attorney General recognized the right of county boards of education to issue
zoning exemptions under section 53094, but the opinion was limited to situations in
which the county board of education is “establishing and maintaining community
schools . . . .” (79 Ops.Cal.Atty.Gen. 155, (1996), italics added, citing Educ. Code,
§ 1984.)



                                              19
school context. That evidence does not demonstrate an established administrative
practice of construing section 53094 as authorizing county boards of education to issue
exemptions for charter schools. Rather, it indicates that just four of 58 county boards of
education have construed section 53094 as applying to county boards of education. And
just one has done so in connection with a charter school.
       In sum, the relevant situational factors in this case counsel in favor of granting the
County Board‟s interpretation of section 53094 very little deference. Given that limited
deference, its construction does not persuade us to abandon our own.
              7.     Application of Section 53094 to Community Colleges
       Appellants claim that in People ex rel. Cooper v. Rancho Santiago College (1990)
226 Cal.App.3d 1281, the court recognized the authority of community college districts
to override local zoning controls pursuant to Government Code section 53094, even
though such districts are not specifically identified in section 53094. Not so. In that
case, the court concluded that a community college could not, pursuant to section 53094,
exempt a commercial swap meet operated on its property from local zoning laws because
the swap meet constituted a nonclassroom facility. The court did not address whether the
community college constituted a school district for purposes of section 53094. The case
cannot be considered authority for a proposition it did not consider. (Ginns v. Savage
(1964) 61 Cal.2d 520, 524, fn. 2; City and County of San Francisco v. Sainez (2000) 77
Cal.App.4th 1302, 1318.)
       Appellants also contend that use of the section 53094 exemption by community
college districts supports their reading of the statute. Below, they presented evidence that
eight community college districts invoked the section 53094 zoning exemption on
10 occasions between 1996 and 2009. That evidence does not shed any light on the
narrow question before us: whether a county board of education may use the
section 53094 exemption in connection with charter school facilities. Accordingly, it
does not alter our analysis.

                                             20
III.   DISPOSITION
            The judgment is affirmed. Appellants shall bear the costs of appeal.




                                         21
                                         _________________________________
                                         ELIA, J.


WE CONCUR:




_______________________________
RUSHING, P. J.




_______________________________
PREMO, J.




San Jose Unified School District et al. v. Santa Clara County Office of Education et al.
H041088
Trial Court:                               Santa Clara County Superior Court
                                           Superior Court No.: 1-13-CV-241695


Trial Judge:                               Honorable Franklin E. Bondonno


Counsel for Plaintiffs, and Respondents:   John Yeh
SAN JOSE UNIFIED SCHOOL                    Amy Eileen Hoyt
DISTRICT et al.                            Burke, Williams & Sorensen

                                           Christopher E. Schumb
                                           Law Offices of Christopher Schumb


Counsel for Defendant and Appellant:       Andrew Scully Oelz
SANTA CLARA COUNTY OFFICE OF               Akin Gump, Strauss Hauer & Feld
EDUCATION et al.


Counsel for Real Parties in Interest and   Andrew Scully Oelz
Appellants:                                Akin Gump, Strauss Hauer & Feld
ROCKETSHIP EDUCATION,
ROCKETSHIP EIGHT CHARTER                   Paul Christian Minney
SCHOOL                                     Young, Minney, & Corr


Amicus Curiae on behalf of                 Winston Peter Stromberg
Appellants:                                Daniel Jennings Aleshire
CALIFORNIA CHARTER SCHOOLS                 Latham & Watkins

                                           Ricardo Jesus Soto
                                           California Charter Schools Association

LEAGUE OF CALIFORNIA CITIES                Raymond A. Cardozo
                                           Reed Smith
