Filed 9/2/15

                           CERTIFIED FOR PUBLICATION

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



SAVE OUR SCHOOLS,

        Plaintiff and Appellant,                    E060759

v.                                                  (Super.Ct.No. CIVBS1300156)

BARSTOW UNIFIED SCHOOL                              OPINION
DISTRICT BOARD OF EDUCATION,

        Defendant and Respondent.




        APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa,

Judge. Reversed.

        Johnson & Sedlack, Raymond W. Johnson, Abigail A. Smith, Kimberly A. Foy,

and Kendall Holbrook for Plaintiff and Appellant.

        Atkinson, Andelson, Loya, Ruud & Romo, John W. Dietrich, Jennifer D. Cantrell,

Paul Z. McGlocklin, and S. Pete Serrano for Defendant and Respondent.

                                   I. INTRODUCTION

        Defendant and respondent, Barstow Unified School District Board of Education

(the District), approved closing two of its elementary schools, Thomson Elementary


                                           1
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 (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 impacts” and the “unusual circumstance”

exceptions—applied. (Guidelines, § 15300.2, subds. (b), (c).)




       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.)

                                              2
       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].)


                                              3
                                   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.

                                             4
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


                                               5
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


                                              6
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).)




                                            10
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

additions” to schools. (Guidelines, § 15314.) Guidelines section 15314 provides: “Class

14 consists of 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. The addition of portable classrooms is included in this

exemption.” (Italics added.)

       The San Lorenzo court summarized the class 14 exemption as follows: “A school

closure and accompanying transfer of students is exempt from CEQA so long as any

resulting physical changes are categorically exempt. ([Pub. Resources Code,]

§ 21080.18.) Minor additions to the receptor school are categorically exempt.

(Guidelines, § 15314.) A minor addition is defined as the lesser of: (1) the addition of 10

or fewer classrooms; or (2) an increase in original student capacity of 25 percent or less.

(Ibid.) In this context, original student capacity means the receptor school’s preexisting

physical ability to house students.” (San Lorenzo, supra, 139 Cal.App.4th at p. 1388,

italics added.) Stated slightly differently, the phrase “original student capacity”

(Guidelines, § 15314) means the receptor school’s enrollment capacity, “physical space

for housing students” or “number of students that can be accommodated physically at the


                                             12
receptor school,” before any students are transferred from the closed schools to the

receptor school. (San Lorenzo, supra, at p. 1387.) The focus on the physical effects of a

school closure on receptor schools is based on the principle that CEQA is concerned

solely with physical changes to the environment. (Ibid.; Guidelines, § 15358, subd. (b).)

       We review an agency’s factual determination that a project is categorically exempt

from CEQA for substantial evidence. (San Lorenzo, supra, 139 Cal.App.4th at pp. 1386-

1389; Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1251.) In determining

whether substantial evidence supports an agency’s exemption determination, we

generally look only to the evidence in the administrative record at the time the agency

made the exemption determination. (San Lorenzo, supra, at p. 1387, citing Western

States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 573; see also State Water

Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 750 [“‘“Unless it can be

demonstrated that the [agency’s] actions are not grounded upon any reasonable factual

basis the courts should not interfere with [the agency’s] discretion or substitute their

discretion for that of the [agency].”’” (Italics added.)].)

       SOS claims insufficient evidence supports the District’s determination that the

“minor additions” to schools exemption (Guidelines, § 15314) applied to the closures of

Thomson and Hinkley and the transfers of their students to the receptor schools. For

purposes of CEQA,“‘[s]ubstantial evidence’ . . . means enough relevant information and

reasonable inferences from this information that a fair argument can be made to support a

conclusion . . . .” (Guidelines, § 15384.) SOS maintains the administrative record


                                              13
contains insufficient evidence to support the District’s determination that the two school

closures and resulting student transfers would not increase the “original student capacity”

at any one of the receptor schools “by more than 25% or ten classrooms, whichever is

less.” (Guidelines, § 15314.) We agree.

       The record shows that as of February 14, 2013, shortly before the District

approved the closures and transfers at its February 26 meeting, 261 students attended

Hinkley and 349 attended Thomson. Thus, assuming that enrollment at Hinkley and

Thomson would have been the same during the 2013-2014 school year, closing the two

schools meant that 610 students would be transferred to the receptor schools.

       The record also shows the numbers of students enrolled at each of the receptor

schools on February 14, 2013. For Hinkley, a K-8 school, the receptor schools and their

enrollments on February 14, 2013, were Lenwood (K-6), with 381 students, Skyline

North (K-6), with 413 students, and BJHS (7-8), with 654 students. For Thomson, a K-6

school, the receptor schools and their enrollment on February 14, 2013, were Skyline

North (K-6), again with 413 students, Henderson (K-6), with 466 students, Cameron (K-

6), with 491 students, and Crestline (K-6), with 464 students. These enrollment figures

say nothing of the “original student capacity” or enrollment capacity of the receptor

schools, however. (Guidelines, § 15314.)

       The record indicates that all of the District’s K-6 schools, including the receptor

K-6 schools (i.e., all receptor schools except BJHS, a K-8 school), were operating at 60 to

65 percent of their enrollment capacity in February 2013, and their enrollment had been


                                             14
declining for several years. But the record contains no information concerning the

“original student capacity,” or original student enrollment capacity, of any of the receptor

schools before the transfers were made. (Guidelines, § 15314; San Lorenzo, supra, 139

Cal.App.4th at pp. 1387-1388.) The record thus contains no evidentiary basis upon

which the District could have estimated each receptor school’s original student capacity,

or physical ability to house students, for the 2013-2014 school year, before any students

from Hinkley and Thompson transferred to the receptor schools. It is possible that some

of the receptor schools were operating at or near their enrollment capacity at the time of

the transfers, while others were operating at less than 60 percent of their enrollment

capacity.

       This is a critical gap in the evidence. Without it, insufficient evidence supports the

District’s determination that the school closures and the resulting transfers of their 610

students to the receptor schools were exempt from CEQA under the minor additions

exemption. (Guidelines, § 15314.) 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, or require fewer than 10 portable or permanent

classrooms to be added to the receptor school. (Ibid.; San Lorenzo, supra, 139

Cal.App.4th at pp. 1388-1389 [calculating impact of student transfers based on receptor

school’s “current capacity”]; East Peninsula, supra, 210 Cal.App.3d at pp. 174-175




                                             15
[same, but, in dicta, calculating impact of transfers to another receptor school based on

the receptor school’s current enrollment].)

       The District’s representation to the public at the February 26, 2013, board meeting

—that students from Hinkley and Thomson would be able to choose which receptor

school to attend—compounds the insufficiency of the evidence supporting the District’s

exemption determinations. At the meeting, the District board members and

superintendent appeared to assume there was more than sufficient enrollment capacity at

the receptor schools, whether individually or as a whole, to absorb the transfers. But the

District did not indicate that it would limit enrollment at any of the receptor schools in

order to ensure that the enrollment at any receptor school would not exceed 125 percent

of its enrollment capacity before the transfers, or require the addition of 10 or more new

classrooms to the receptor school. (Guidelines, § 15314.)

       The record indicates, for example, that 63 of Hinkley’s 261 transfer students

would be in seventh and eighth grades in 2013-2014, and would have to be transferred to

BJHS, the District’s only middle school. BJHS’s total enrollment was 751 on February

14, 2013. Adding Hinkley’s 63 students to BJHS would have increased total enrollment

at BJHS to 814 for the 2013-2014 school year, an increase of 8.4 percent. But the key

figure to know is BJHS’s enrollment capacity before the transfers, not BJHS’s actual

student enrollment before the transfers.

       The record also indicates that if all of Hinkley’s 198 grade K-6 students and all of

Thomson’s 349 grade K-6 students—547 students—elected to transfer to Skyline North


                                              16
Elementary School for the 2013-2014 school year, then Skyline North’s actual enrollment

would have more than doubled, from 422 students in 2012-2013 to 969 students in 2013-

2014. But again, without knowing the enrollment capacity of Skyline North before the

transfers, insufficient evidence supports the District’s determination that the closures and

resulting transfers were exempt from CEQA under section 15314 of the Guidelines.

       In addition to being exempt under Guidelines section 15314, the District argues

that the closures and transfers are exempt under Guidelines section 15378, subdivision

(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 projects

under CEQA. But as the District concedes, an increase in student enrollment “is not [a

significant] environmental impact, unless the increase exceeds the threshold required in

CEQA Guidelines section 15314.” Thus, the District’s argument that the organization

and administrative activities exemption applies begs the question of whether the

increases, if any, in total student enrollment at any of the receptor schools, as a result of

the transfers, would not exceed the limitations of the minor additions to schools

exemption. (Guidelines, § 15314.) If the transfers exceeded those limitations for any

receptor school, the transfers were not exempt under Guidelines section 15378.

C. Remand for Further Proceedings

       Public Resources Code section 21168.9 governs the “mandates” a court must issue

in order to remedy a CEQA violation. If, following a trial, hearing, or appellate remand,

a court finds that a public agency has made a determination, finding, or decision “without


                                              17
compliance” with CEQA, the court is required to issue a peremptory writ of mandate

“specifying what action by the public agency is necessary to comply with [CEQA].”

(Pub. Resources Code, § 21168.9, subds. (a), (b); POET, LLC v. State Air Resources Bd.

(2013) 218 Cal.App.4th 681, 756-757.)

       The writ must direct the agency to do at least one of the following: (1) void its

determination, finding, or decision, in whole or in part (Pub. Resources Code, § 21168.9,

subd. (a)(1)); (2) suspend a specific project activity which could cause an adverse change

to the environment; or (3) “take specific action as may be necessary to bring the

[agency’s] determination, finding, or decision into compliance with [CEQA]” (id., subd.

(a)(3); Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 286-287).

The writ must also specify that the trial court “retain[s] jurisdiction over the public

agency’s proceedings by way of a return to the peremptory writ until the court has

determined that the public agency has complied with [CEQA]” (Pub. Resources Code,

§ 21168.9, subd. (b)), but the writ may not “direct any public agency to exercise its

discretion in any particular way” (id., subd. (c)).

       Public Resources Code section 21168.9 gives courts “some flexibility in tailoring

a remedy to fit a specific CEQA violation.” (San Bernardino Valley Audubon Society v.

Metropolitan Water Dist. (2001) 89 Cal.App.4th 1097, 1103-1104 [Fourth Dist. Div.

Two].) The statute is a specific application of the general rule contained in Code of Civil

Procedure section 1094.5, subdivision (f): “‘The court shall enter judgment either

commanding respondent to set aside the order or decision, or denying the writ. Where


                                              18
the judgment commands that the order or decision be set aside, it may order the

reconsideration of the case in the light of the court’s opinion and judgment and may order

respondent to take such further action as is specifically enjoined upon it by law, but the

judgment shall not limit or control in any way the discretion legally vested in the

respondent.’” (San Bernardino Valley Audubon Society v. Metropolitan Water Dist.,

supra, at p. 1103.)

       We have concluded that the District violated CEQA because insufficient evidence

supports its determination that the closures of Hinkley and Thomson, and the resulting

transfers of students from those schools to other District “receptor” schools, were exempt

from CEQA pursuant to the class 14 categorical exemption for “minor additions” to

schools. (Guidelines, § 15314; Association for Protection Etc. Values v. City of Ukiah

(1991) 2 Cal.App.4th 720, 727-729 [agency violates CEQA if insufficient evidence

supports its exemption determination]; Pub. Resources Code, § 21168.5.)

       At least two mandates are necessary to bring the District’s factually unsupported

exemption determinations into compliance with CEQA: a peremptory writ directing the

District (1) to void its determinations that the closures of Hinkley and Thomson and the

resulting transfers of their students to the receptor schools were exempt from CEQA

under the minor additions to schools exemption of Guidelines section 15314 (Pub.

Resources Code, § 21168.9, subd. (a)(1)), and (2) to reconsider whether the closures and

transfers were exempt from CEQA under the minor additions exemption, or any other

exemption, at the time the District approved closures and transfers in February 2013


                                             19
(Pub. Resources Code, § 21168.9, subd. (a)(3)). The trial court may include additional

mandates in the writ as it deems necessary to ensure compliance with CEQA. (See San

Bernardino Valley Audubon Society v. Metropolitan Water Dist., supra, 89 Cal.App.4th

at pp. 1103-1105.)

       The District argues that because Hinkley and Thomson were closed in 2013 and

their students were transferred to the receptor schools beginning in the 2013-2014 school

year, no effective relief can be granted on SOS’s writ petition and the petition is therefore

moot. SOS argues its petition is not moot because the District could reopen Hinkley and

Thompson. On the record before us, the writ petition is not necessarily moot. If,

following remand, the District is unable to determine, based on substantial evidence, that

the closures and transfers were exempt from CEQA review when they were approved in

2013, the trial court may be able to provide SOS effective relief by, for example, ordering

the District to (1) reopen the schools, or (2) take other steps to mitigate any adverse

environmental impacts of the closures and transfers. (See Woodward Park Homeowners

Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.)

       Following the court’s issuance of the peremptory writ on remand, the District may

consider additional evidence not before it when it determined, at the February 26, 2013,

meeting of its board, that closures and transfers were exempt from CEQA. (See Voices of

the Wetlands v. State Water Resources Control Bd., supra, 52 Cal.4th at pp. 525-535;

Keeler v. Superior Court (1956) 46 Cal.2d 596, 600; Cal. Adm. Hearing Practice

(Cont.Ed.Bar 2d ed. 2014) Decision and Review, § 8.121, pp. 8-79 to 8-80.) As


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discussed, the present administrative record contains insufficient evidence of the

“original student capacity,” before the transfers, of any of the receptor schools.

(Guidelines, § 15314.) If the District wishes to rely on the minor additions exemption on

remand, it is critical that it ascertain the original student capacity of each receptor school

before the transfers, and whether the transfers required the addition of any new

classrooms to any of the receptor schools. (San Lorenzo, supra, 139 Cal.App.4th at pp.

1388-1389.)

       If the District once again determines that the closures and transfers were exempt

from CEQA under the minor additions exemption (Guidelines, § 15314) or any other

categorical exemption, the burden will shift to SOS and any other persons challenging the

District’s exemption determination to produce substantial evidence showing that an

exception to the minor additions exemption applied (Berkeley Hillside Preservation v.

City of Berkeley (2015) 60 Cal.4th 1086, 1104-1105 (Berkeley Hillside); Guidelines,

§ 15300.2). On this appeal, SOS claims the cumulative impacts and unusual

circumstance exceptions applied. (Guidelines, § 15300.2, subds. (b), (c).) On remand,

SOS and other challengers must be given an opportunity to produce evidence supporting

these and other applicable exceptions to the minor additions exemption. (See East

Peninsula, supra, 210 CalApp.3d at pp. 172-173.)

       For guidance on remand, we observe that the “cumulative impact” exception

applies, “when the cumulative impact of successive projects of the same type in the same

place, over time is significant.” (Guidelines, § 15300.2, subd. (b).) In determining


                                              21
whether the cumulative impacts exception applies, the District must consider the

cumulative impacts of the closures of both Hinkley and Thompson, and the resulting

transfers of their students to the receptor schools, together. The economic and social

effects of a project are not to be treated as significant effects on the environment.

(Guidelines, §§ 15131, subd. (a), 15064, subd. (f)(6).)

       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.




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