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LAW & MOTION CALENDAR
Wednesday, September 22, 2021, 3:00 p.m.
Courtroom 17 – Hon. Arthur A. Wick
3035 Cleveland Avenue, Santa Rosa
PLEASE NOTE: Per order of the court, any party or representative of a party must appear remotely through Zoom for this calendar. In-person appearances are not permitted in Courtroom 17 for this calendar.
If the tentative ruling is accepted, no appearance is necessary unless otherwise indicated.
TO JOIN ZOOM ONLINE:
D17 – Law & Motion 3:00 pm Wednesday (2:30 pm Friday)
Meeting ID: 895 5887 8508
TO JOIN ZOOM BY PHONE:
By Phone (same meeting ID and password as listed):+1 669 900 6833 US (San Jose)
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Wick’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. on Tuesday, September 21st. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
PLEASE NOTE: The Court WILL provide a Court Reporter for this calendar. If there are any concerns, please contact the Court at the number provided above.
1. SCV-266570, McEwan v. B. Tiapon Grocery, Inc.:
This matter is on calendar for the motion by plaintiffs John McEwan and Mary McEwan (“Plaintiffs”) for leave to amend the complaint substituting the fictitiously named defendant for their true name pursuant to Cal. Code Civ. Proc. (“CCP”) § 474.
Plaintiffs request leave to amend to substitute DOE 1 with “Grocery Outlet Inc.” Defendant Grocery Outlet Inc. has not offered substantive opposition to the substitution, and does not allege prejudice. The court has continued the matter once due to Defendant Grocery Outlet Inc.’s expressed prejudice at late service. There has been no argument that Plaintiffs have filed the motion with unreasonable delay.
The Motion for Leave to Amend is GRANTED. Plaintiffs shall submit a first amended complaint with the appropriate substitution of the true name of the defendant within 30 days of notice of this order.
Plaintiffs’ counsel shall submit a written order to the court consistent with this ruling and in compliance with Rule of Court 3.1312(a) and (b).
2. SCV-266772, Foothill Construction & Landscaping, Inc. v. Ray Allen’s Resort Hotel, LLC:
Based on the request of the moving party and the recommendation of the discovery facilitator, this matter has been continued to December 1, 2021 at 3:00 pm in Department 17.
3. SCV-268238, Community Alliance for Responsible Education v. West Sonoma County Union High School District:
Petition for Writ of Mandate DENIED.
Facts and History
Petitioner brings this action for administrative mandamus challenging, and seeking to set aside, Respondent’s decision 1) approving the closure of El Molino High School (“El Molino”) in Forestville and transferring all El Molino students, faculty, and staff to the existing Analy High School (“Analy”) campus (“the Analy Campus”) in Sebastopol and the Laguna High School (“Laguna”) campus (“the Laguna Campus”) in Sebastopol, while transferring both the Laguna students, faculty, and staff as well as Respondent’s district offices to the El Molino campus (“the El Molino Campus”) (“the Consolidation”); 2) finding that the Consolidation is exempt from the California Environmental Quality Act (“CEQA”); 3) approving a Notice of Exemption from CEQA (“NOE”); 4) all associated decisions made on November 30, 2020; and 5) the final determination made on March 10, 2021 to approve the Consolidation and associated timeline for completion (collectively, “the Project”). Petitioner contends that Respondent’s action violates CEQA and that the Project is not exempt from CEQA.
Respondent approved the NOE in November 2020, with associated determinations made on or about November 30, 2020, and the final determination on March 10, 2021.
Petitioner moved the court to augment the administrative record prepared for these proceedings and to include several documents (“the Proposed Documents”) which Petitioner claimed should be included in the record. Specifically, the Proposed Documents which Petitioner seeks to include in the record are 1) an e-mail exchange between the Analy vice principal and a member of the public regarding parking issues in Sebastopol; 2) a screenshot of Respondent’s website announcing that practice for the boys’ volleyball team for the newly formed “West County High School” will be held at the El Molino Campus; and copies of photographs taken by Ginny Wilkes (“Wilkes”), a paralegal at the firm of Petitioner’s attorneys, of the Analy Campus.
This court denied that motion after a hearing on September 1, 2021, finding that the Proposed Documents all post-dated the underlying proceedings and were improper, post-decision extrinsic evidence which should not be included in the record.
This matter is on calendar for Petitioner’s petition for writ of mandate. Petitioner argues that the court must set aside the NOE because 1) substantial evidence does not support it since Respondent manipulated and improperly calculated student capacity and ignored evidence contrary to its determination; and 2) the Project falls within the exceptions to the exemption sine the Project as approved no longer exists with Respondent formulating and implementing a new project, and Respondent improperly segments the Project.
Respondent opposes the petition. It first contends that the applicable statute of limitations bars the petition, Petitioner is guilty of laches, and the action is moot. It also argues that properly found the Project to be exempt from CEQA; the Project does not fall within an exception to the exemptions; Petitioner failed to provide substantial evidence of significant cumulative impacts or credible evidence that the Project will have significant impacts; there is no new project; and the Project has not been segmented.
In two requests for judicial notice, Respondents request judicial notice of the District’s school calendar, bell schedules, campus map, and a web page as well as the City of Sebastopol Building and Fire Department Inspection Report and transcript of a District trustees’ board meeting. These are judicially noticeable. Petitioner does not oppose the requests. The court notes that in granting these requests, the court is not finding that these documents or the information which they contain are to be included in, or considered part of, the administrative record, and the court is not considering them with respect to any argument or analysis which must be based on the record. The court will consider them only with respect to arguments, such as Respondents’ claim of mootness, which are not based on the record and evidence before Respondents in the underlying proceedings. The court further notes that to the extent these documents or the information they contain may be in the record, then they will be considered as any other part of the record.
With these qualifications, the court grants the requests.
The ultimate mandate of CEQA is “to provide public agencies and the public in general with detailed information about the effect [of] a proposed project” and to minimize those effects and choose possible alternatives. Public Resources Code (“PRC”) section 21061. After all, the public and public participation hold a “privileged position” in the CEQA process based on fundamental “notions of democratic decision-making.” Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association (1986) 42 Cal.3d 929, 936. As stated in Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376, at 392, “[t]he EIR process protects not only the environment but also informed self-government.”
An environmental impact report (“EIR”) is required for a project which substantial evidence indicates may have a significant effect on the environment, unless the project is exempt from CEQA. Guidelines for the Implementation of the California Environmental Quality Act (“Guidelines”), 14 CCR section 15063(b) [The Guidelines are at 14 Cal Code Regs. §§ 15000, et seq. Courts should at a minimum afford great weight to the Guidelines except when a section is clearly unauthorized or erroneous under CEQA. Laurel Heights Improvement Ass’n. v. Regents of Univ. of Cal. (Laurel Heights I) (1988) 47 Cal.3d 376, 391, fn. 2; Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1315.]; PRC sections 21100, 21151; PRC section 21084 (governing exemptions); Guideline 15061 (governing exemptions). EIRs are, in the words of the California Supreme Court, “the heart of CEQA.” Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal.3d 376, 392 (Laurel Heights I). Thus, an environmental impact report (“EIR”) is ordinarily required, and a lesser CEQA document such as a negative declaration (“ND”) is insufficient, if substantial evidence in light of the record indicates that the project may have a significant impact. PRC 21080(c) (1); Guideline 15064(a) (1).
The Supreme Court in No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, at 74, found that CEQA sets forth a three-stage process for determining if environmental review pursuant to CEQA is necessary and, if so, what level. This was further explained and clarified in Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, at 1371-1372, which stated that “CEQA lays out a three-stage process” by which 1) the agency must determine whether the particular activity is covered by CEQA, i.e., the activity is a “project” being “approved” as defined in CEQA and is not exempt; 2) if the activity is a “project” and not exempt, the agency must conduct an initial study to determine if it “may have a significant effect on the environment”; and 3) it must then approve an EIR if the project may have such an effect, or if it finds that the project will not have such an impact, it may prepare a negative declaration. In the words of Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn. (App. 3 Dist. 2015) 242 Cal.App.4th 555, at 568,
“[T]he Guidelines establish a three-step process to assist a public agency in determining which document to prepare for a project subject to CEQA. (Guidelines, § 15002, subd. (k).) In the first step, the lead public agency preliminarily examines the project to determine whether the project is statutorily exempt from CEQA, falls within a Guidelines categorical exemption or if ‘ “it can be seen with certainty” that [the] project will not have a significant effect on the environment. [Citations.]’ [Citation.] If so, no further agency evaluation under CEQA is required. The agency may prepare a notice of exemption. [Citation.] If, however, the project does not fall within an exemption and it cannot be seen with certainty that the project will not have a significant effect on the environment, the agency takes the second step and conducts an initial study to determine whether the project may have a significant effect on the environment. [Citations.] If the initial study shows there is no substantial evidence the project may have a significant effect on the environment or revisions to the project would avoid such an effect, the lead agency prepares a negative declaration. [Citations.] If the initial study shows ‘there is substantial evidence ... that the project may have a significant effect on the environment,’ the lead agency must take the third step and prepare an environmental impact report (EIR).” [Citation.]
Projects Subject to CEQA
Generally speaking, any activity a public agency has discretion to carry out or to approve which has the potential for resulting in a physical change in the environment is a “project.” Gentry, supra, 1371. Under CEQA, a “Project” means the “activity which is being approved and which may be subject to several discretionary approvals” and it “does not mean each separate governmental approval.” Guideline 15378.
Respondents do not contend that the decision to adopt the Reach Code was not within the definition of a “project” under CEQA.
Statute of Limitations
Respondent contends that Petitioner failed to commence this action within 35 days of the filing of the NOE. Noting that Petitioner did not commence this action until April 21, 2020, it argues that it approved the Project on November 10, 2020, filing the NOE on December 1, 2020, with the decision on March 10, 2021, which Petitioner claims is the final decision, merely being a subsequent determination on a different resolution regarding only a potential deferral of the already-approved Project in the event that tax measures passed.
Both sides agree that CEQA imposes a 35-day limitations period in which to bring an action challenging a notice of exemption or NOE. PRC section 21167(d); Guidelines 15112(c) (2), 15064(d). As with the adoption of other determinations pursuant to CEQA, specifically a notice of determination (“NOD”) for the adoption of a negative declaration (“ND”) or EIR, an agency may not file an NOE until after having approved the project at issue. Guidelines 15062(a) (governing NOEs), 15075(a) (governing NODs for NDs), 15094(a) (governing NODs for EIRs). Guideline 15064(a) states, in pertinent part and with emphasis added, “When a public agency decides that a project is exempt from CEQA…and… approves or determines to carry out the project, the agency may, file a notice of exemption. The notice shall be filed…after approval of the project. Guideline 15112(c) (2) states
(c) The statute of limitations periods under CEQA are as follows:
(2) Where the public agency filed a notice of exemption in compliance with Section 15062, 35 days after the filing of the notice and the posting on a list of such notices.
Similarly, Guideline 15064(d) states, in pertinent part and with emphasis added, “The filing of a Notice of Exemption and the posting on the list of notices start a 35 day statute of limitations period on legal challenges to the agency's decision that the project is exempt from CEQA.”
The NOE was filed and posted on December 1, 2020. AR 1. This is not apparently in dispute. It states that it is for “School Consolidation Project” and describes the Project as the “Consolidation of El Molino… to Analy… and Laguna… and transfer of Laguna… students to El Molino HS campus….” Ibid. The resolution with the NOE (“Resolution 10”) expressly describes the Consolidation and expressly states that Respondent approves it, stating “Passed and Adopted” on November 30, 2020 and stating that it “shall take effect upon its adoption.” AR 2-9. Respondent also adopted another resolution (“Resolution 11”) which clearly and expressly states that it “approves a delayed timeline for school consolidation in order to afford the community an opportunity to raise additional taxes… through tax measures placed on the March 2, 2021 ballot….” AR 2669. It specifies that if a District tax measure (“the District Tax”) and a Sonoma County transient occupancy tax measure (“the County Tax”) both pass, the consolidation will not occur until the 23023-2024 school year; if only one of the two taxes passes, the consolidation will not occur until the 2022-2023 school year. Ibid.
Petitioner argues that the Resolution 10 approved and adopted on November 30, 2020 did not amount to an actual “approval” of a project because Respondent did not commit to a course of action.
Petitioner is correct that an agency only triggers CEQA once it has “approved” a “project” as CEQA defines those terms. Guideline 15352 governs and defines “approval” of a project, the key aspect of which is commitment to a definite course of action. Guideline 15352; Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 139. This is actually the first step in determining if CEQA may apply, before deciding if what the agency has “approved” is a “project.” See Lexington Hills Association v. State of California (6th Dist.1988) 200 Cal.App.3d 415, 430-433; Stand Tall on Principles v. Shasta Union High School District (1991) 235 Cal.App.3d 772, 781 (STOP). Guideline 15352 states, in full,
(a) “Approval” means the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person. The exact date of approval of any project is a matter determined by each public agency according to its rules, regulations, and ordinances. Legislative action in regard to a project often constitutes approval.
(b) With private projects, approval occurs upon the earliest commitment to issue or the issuance by the public agency of a discretionary contract, grant, subsidy, loan, or other form of financial assistance, lease, permit, license, certificate, or other entitlement for use of the project.
Whether there has been an “approval” depends on whether “as a practical matter, the agency has foreclosed any meaningful options to going forward with the project,” in which case “for purposes of CEQA the agency has ‘approved’ the project.” Save Tara, 139.
In STOP, a school district passed resolutions designating a “preferred site” for a new school and directing the administration to make a conditional offer on the property, contingent on completion of an EIR for the project and acceptance by state school authorities. This was found not to be an “approval” triggering CEQA because the district did not commit to a definite court of action by making the deal expressly contingent on CEQA compliance. However, the court added that the EIR “must not be used to rationalize or justify a decision already made.” STOP, 783.
In City of Vernon v. Board of Harbor Commissioners (1998) 63 Cal.App.4th 677, the petitioner challenged the Port of Long Beach’s decision to enter into a “statement of intent” with a shipping company which declared the parties’ intent later to enter into a lease of shipyard facilities. The petitioner asserted that this bestowed an entitlement on the shipping company and therefore was “approval” of a project but the court of appeal found that the agency did not commit to a definite course of action and was not legally bound to the lease but instead only stated that it was a “proponent of advocate” of entering into the lease and had “high esteem” for the possible future lease. The statement merely indicated the agency’s intent and support for the lease; it was not itself a lease and it bound the agency to nothing.
In Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, the city approved a “Conditional Agreement for Conveyance and Development of Property” (the Agreement) to convey the real property at 1343 North Laurel Ave. (Tara) to a developer who would then convert it into multi-unit residential housing for seniors. The Agreement required the city to convey Tara to the developer but conditioned ultimate approval of the development on compliance with applicable laws, including CEQA. The Supreme Court expressly granted review to address “whether an EIR was required before City's approval of the conditional development agreement.”
It noted, at 354-355,
This court, like the CEQA Guidelines, has thus recognized two considerations of legislative policy important to the timing of mandated EIR preparation: (1) that CEQA not be interpreted to require an EIR before the project is well enough defined to allow for meaningful environmental evaluation; and (2) that CEQA not be interpreted as allowing an EIR to be delayed beyond the time when it can, as a practical matter, serve its intended function of informing and guiding decision makers.
To be consistent with CEQA's purposes, the line must be drawn neither so early that the burden of environmental review impedes the exploration and formulation of potentially meritorious projects, nor so late that such review loses its power to influence key public decisions about those projects.
The court determined that while conditioning ultimate approval of a specific project on CEQA compliance is a factor to consider and may be a “legitimate” way to explore a future project, it is not dispositive and alone cannot allow an agency to enter into an agreement or make a decision prior to CEQA review if the agency has actually committed to something:
A CEQA compliance condition can be a legitimate ingredient in a preliminary public-private agreement for exploration of a proposed project, but if the agreement, viewed in light of all the surrounding circumstances, commits the public agency as a practical matter to the project, the simple insertion of a CEQA compliance condition will not save the agreement from being considered an approval requiring prior environmental review.
The Supreme Court found the decision there to be an “approval” requiring CEQA review, rejecting the argument of respondent and real party which, it explained would mean that “any development agreement, no matter how definite and detailed, even if accompanied by substantial financial assistance from the agency and other strong indications of agency commitment to the project, falls short of approval so long as it leaves final CEQA decisions to the agency's future discretion.” Save Tara, 357. It added, at 357, that “approval” occurs “when the agency first exercises its discretion to execute a contract or grant financial assistance, not when the last such discretionary decision is made.” Emphasis original. Thus, the court concluded
City's public announcements that it was determined to proceed with the development…, its actions in accordance with that determination by preparing to relocate tenants from the property, its substantial financial contribution to the project, and its willingness to bind itself, by the May 3 draft agreement, to convey the property if the developer “satisfied” CEQA's “requirements, as reasonably determined by the City Manager,” all demonstrate that City committed itself to a definite course of action regarding the project before fully evaluating its environmental effects. That is what sections 21100 and 21151 prohibit.
At the same, time, the court rejected petitioner’s argument that “any” agreement, conditional or unconditional, involving a “well-defined” project must always require CEQA review. Save Tara, 358.
Petitioner fails to demonstrate that Respondent did not “approve” the Project on November 30, 2020. The portions of the record to which it cites, at AR 3695-3697, 3040-3051, and specifically 3046, and 2855 fail to support its position. The Resolution 10, meanwhile, as noted above, expressly states that it approved and adopted the Consolidation. The evidence in the record to which Petitioner cites is unclear and equivocal. At the most, on its face it only indicates a possibility that after Respondent approved the Project and adopted the NOD, others continued to propose alternatives or different versions, and Respondent was considering possible new plans. Otherwise, statements to which Petitioner cites informing members of the public and others that Respondent had taken the path to “consider” consolidation over the past several months does not mean that Respondent was still only considering the Project and had not in fact adopted it. Similarly, statements in later communications and proceedings subsequent to the Project approval and NOD regarding possible changes in Respondent’s “direction” or the like also do not indicate that Respondent had not committed to a definite course of action at the time of the November 30, 2020 decision and the subsequent NOD.
It is clear from the March 2021 proceedings and the language of Resolution 11, that the subsequent determinations regarding this Project were not a final approval of the Project, either, but merely decisions about whether to implement the Project for the upcoming school year as apparently envisioned, or postpone implementation of the Project by one or two years in the even of the subsequent approval the tax measures noted above. AR 2665-2669, 3046
Petitioner also argues, as it had done in the motion to augment the record, that the November 30, 2020 decision and the NOD were for a project different from the one now being implemented and so cannot operate to commence the 35-day limitations period. Petitioner appears to be correct that the decisions and NOD adoption on November 30, 2020 and December 1, 2020 cannot operate to commence the limitations period on a different project subsequently adopted or implemented without a formal adoption. Likewise, Petitioner is correct that these actions do not appear to trigger a limitations period to challenge any implementation of the Project on the basis that it differs from the Project as approved and for which the NOD was adopted. Petitioner, at least potentially may be able to challenge such conduct or decisions. However, this petition is limited to challenging the decision to adopt the Project and the NOD. Those decisions were formally made and published on November 30, 2020 and December 1, 2020.
If, as Petitioner in part contends, the Project as implemented is different from the Project as actually approved, then Petitioner may also potentially be able to challenge that, but such a challenge has no bearing on whether the approval of the Project as approved complies with CEQA, and it is outside the ambit of this petition. The petition, in other words, challenges only the approval of the Project, and NOD, as defined in the underlying proceedings; it does not address whether the implementation of the Project complies with the description and parameters as approved or if Respondent later at some point adopted a different project. Such challenges must wait for another action.
The court therefore finds this action to be untimely and DENIES the petition on this basis.
Laches and Mootness
Respondent next argues that Petitioner is guilty of laches and the challenge is now moot. The doctrine of laches is applicable to petitions under CEQA and may operate to bar claims. See Concerned Citizens of Palm Desert, Inc. v. Riverside County Board of Supervisors (1994) 38 Cal.App.3d 257, 265; Santiago Water District v. County of Orange (1981) 118 Cal.App.3d 818, 834. However, according to Santiago Water District, a court cannot bar an action based on laches if the action was brought within the applicable statute of limitations unless the court finds “some facts or circumstances attending the delay which have operated to the injury of the defendants.”
Respondents contend that here Petitioner “acquiesced” by attending subsequent board meetings where Project implementation was discussed without taking action to stop it, and the issue has become moot because Respondent has made the changes such as those regarding staff and rebranding, needed to implement the Project.
These arguments are partly persuasive. Preliminarily, as noted above, Petitioner appears clearly to have failed to file the petition within the limitations period, rendering the action untimely even without regard to laches. Additionally, Respondents have demonstrated the requisite unreasonable delay resulting in prejudice. The record is clear that Respondent unequivocally made the decision to approve the Project and adopt the NOD on November 30, 2020 and December 1, 2020, and this was clearly published. The Resolution 10 and the NOD from those days are, on their face, clear and unequivocal about the nature of the Project and Consolidation approved, and about the approval. The only decision left for the future, as Resolution 11 makes clear, was a determination about which school year to implement the Project, with the default clearly being the following, 2021-2022 school year unless one or more tax measures as noted above were passed. Petitioner clearly waited until after the tax measures failed to pass, and the subsequent March 2021 decision to proceed as planned in implementing the Project for the upcoming school year. Even if there was later some potential or request for revisiting the issue and changing the November 2020 approval, the fact is that the November and December 2020 decisions were an absolutely clear, express, and unequivocal decision to adopt and approve the Project, yet Petitioner waited pending later proceedings on whether to delay the implementation of the Project and, at most, a subsequent possibility or request that Respondent reconsider or alter the decision which, in fact, it never did. Petitioner or its constituent members, or both, took part in the 2021 proceedings regarding the timing of the implementation and yet did nothing to challenge it until after the final, March 2021 decision to implement the Project immediately for the upcoming school year rather than to wait. Petitioner quite clearly had enough reason to act earlier, after the November and December 2020 decision and NOD. Had it done so, Petitioner could have raised the challenge before waiting until it was being implemented for the upcoming school year. This is sufficient to demonstrate laches.
That said this does not clearly demonstrate that the action is “moot.” Respondent fails to demonstrate that this is an instance in which the implementation may not be undone reasonably. Since it involved consolidation of existing schools, programs, and offices, and merely transferring among existing facilities as opposed to destroying or eliminating structures, trees, or the like which cannot be replaced, or even constructing something which may not be reasonably removed, mootness is not evident.
Exemption from CEQA
Respondent approved the Project with an NOD finding the Project to be exempt from CEQA pursuant to the Class 14 categorical exemption for minor additions to schools. As noted above, the first step an agency must make in conducting review pursuant to CEQA is determining whether an activity is a “project” and, if so, whether it is “exempt” from CEQA.
PRC section 21084 is the statutory authority for exemptions from CEQA and exceptions to those exemptions. If the project is exempt, then the agency need conduct no further CEQA review. Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn. (App. 3 Dist. 2015) 242 Cal.App.4th 555, 568. If an exception to the exemptions applies, the agency may not rely on an exemption and must conduct further CEQA review.
Guideline 15061 governs “Review for Exemption” from CEQA and sets forth the types of exemptions. These include, as relevant here, (2) pursuant to a categorical exemption found in Guidelines 15300, et seq. See Apartment Association of Greater Los Angeles v. City of Los Angeles (2001) 90 Cal.App.4th 1162, 1171; Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 116-117.
In accordance with PRC section 21084, the CEQA Guidelines list a number of classes of projects which are considered generally not to result in a significant impact on the environment and are thus generally exempted from CEQA as “categorical exemptions.” PRC 21084; Guidelines 15300-15331; Azusa Land Reclamation Co., Inc. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165. Guideline 15314 sets forth the Class 14 categorical exemption for minor additions to schools. It states, in full, “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.”
The Applicable Standard of Review for Exemptions and Exceptions to Exemptions
Any inquiry into whether an agency has failed to comply with CEQA “shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. PRC section 21168.5.
There are several specific standards which may apply under CEQA when determining if the agency has thus abused its discretion, with the determination as to which applies depending on the circumstances and, most specifically, the procedural stage of the environmental review.
Where an agency has determined if a project is exempt from CEQA under a categorical exemption, the court must uphold the agency’s decision if supported by substantial evidence in light of the whole record. Citizens for Environmental Responsibility, supra, 242 Cal.App.4th 568; Davidon Homes v. City of an Jose (1997) 54 Cal.App.4th 106, 115; Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1251; California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, at 185.
In the words of County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, at 966, “ ‘Where a project is categorically exempt, it is not subject to CEQA requirements and “may be implemented without any CEQA compliance whatsoever.” ’ [Citation.] [¶] In keeping with general principles of statutory construction, exemptions are construed narrowly and will not be unreasonably expanded beyond their terms. [Citations.] Strict construction allows CEQA to be interpreted in a manner affording the fullest possible environmental protections within the reasonable scope of statutory language. [Citations.] It also comports with the statutory directive that exemptions may be provided only for projects which have been determined not to have a significant environmental effect. [Citations.]”
As noted above, the court in of Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn. (App. 3 Dist. 2015) 242 Cal.App.4th 555, at 568, set forth a detailed description of the steps and necessary determinations which are required when an agency studies an activity to determine if CEQA applies and also what level of review is necessary, explaining, with emphasis added, that if an agency finds a project to be exempt from CEQA, “no further agency evaluation under CEQA is required…. If, however, the project does not fall within an exemption and it cannot be seen with certainty that the project will not have a significant effect on the environment, the agency takes the second step and conducts an initial study to determine whether the project may have a significant effect on the environment.” On the burden and standard of review, it explained, at 568 with emphasis added,
The lead agency has the burden to demonstrate that a project falls within a categorical exemption and the agency's determination must be supported by substantial evidence. [Citation.] Once the agency establishes that the project is exempt, the burden shifts to the party challenging the exemption to show that the project is not exempt because it falls within one of the exceptions listed in Guidelines section 15300.2.
Similarly, the court in California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, at 185, also explained, with emphasis added,
Where the specific issue is whether the lead agency correctly determined a project fell within a categorical exemption, we must first determine as a matter of law the scope of the exemption and then determine if substantial evidence supports the agency's factual finding that the project fell within the exemption. (Citations.) The lead agency has the burden to demonstrate such substantial evidence. (Citations.)
Once the agency meets this burden to establish the project is within a categorically exempt class, “the burden shifts to the party challenging the exemption to show that the project is not exempt because it falls within one of the exceptions listed in Guidelines section 15300.2.”
Accordingly, “[a]n agency's determination that a project falls within a categorical exemption includes an implied finding that none of the exceptions identified in the Guidelines is applicable. The burden then shifts to the challenging party to produce evidence showing that one of the exceptions applies to take the project out of the exempt category.” Save Our Carmel River v. Monterey Peninsula Water Mgmt. Dist. (2006) 1412 Cal.App.4th 677, 689; quoted and followed also in San Francisco Beautiful v. City & County of San Francisco (2014) 226 Cal.App.4th 1012, at 1022-1023.
The Supreme Court in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, at 1105, reiterated that “[a]s to projects that meet the requirements of a categorical exemption, a party challenging the exemption has the burden of producing evidence supporting an exception.” Nonetheless, the court added, at 1103, that after finding a project to be categorically exempt, the agency must consider evidence in the record which shows that an exception to the exemption may apply. See also Guideline 15300.2.
Agency actions are presumed to comply with applicable law unless the petitioner presents proof to the contrary. Evid. Code section 664; Foster v. Civil Service Commission of Los Angeles County (1983) 142 Cal.App.3d 444, 453. Accordingly, the findings of an administrative agency are presumed to be supported by substantial evidence absent contrary evidence. Taylor Bus. Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331.
Additionally, as noted above, any inquiry into whether an agency has failed to comply with CEQA must determine if the error, or abuse of discretion, was prejudicial. PRC section 21168.5; see also Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059, at 1073.
Guideline 15300.2 sets forth the exceptions to the categorical exemption classes. These include, relevant here as those which Petitioner apparently has raised, are the cumulative impacts exception and the unusual circumstances exception. These state,
(b) Cumulative Impact. All exemptions for these classes are inapplicable when the cumulative impact of successive projects of the same type in the same place, over time is significant.
(c) Significant Effect. A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.
The Supreme Court in Berkeley Hills, supra, 60 Cal.4th at 1105, explained how one challenging an exemption determination must challenge it based on the unusual circumstances exception, stating, with original emphasis,
As explained above, to 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. (§ 21151.) Such a showing is inadequate to overcome the Secretary'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 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.
The Supreme Court therefore set forth two ways in which someone might support an argument that the unusual circumstances exception applies. As the court in Citizens for Environmental Responsibility, supra, 242 Cal.App.4th, at 574-576, described the ruling of Berkeley Hillside,
In Berkeley Hillside, … our high court added additional clarification to the unusual circumstance exception analysis. The court identified two alternative ways to prove the exception. [Citation].
In the first alternative, as this court said in Voices, a challenger must prove both unusual circumstances and a significant environmental effect that is due to those circumstances. In this method of proof, the unusual circumstances relate to some feature of the project that distinguishes the project from other features in the exempt class. [Citation.] Once an unusual circumstance is proved under this method, then the “party need only show a reasonable possibility of a significant effect due to that unusual circumstance.” (Ibid. italics added.)
The court in Berkeley Hillside made clear that “section 21168.5's  abuse of discretion standard appl[ies] on review of an agency's decision with respect to the unusual circumstances exception. The determination as to whether there are ‘unusual circumstances’ [citation] is reviewed under section 21168.5's substantial evidence prong. However, an agency's finding as to whether unusual circumstances give rise to ‘a reasonable possibility that the activity will have a significant effect on the environment’ [citation] is reviewed to determine whether the agency, in applying the fair argument standard, ‘proceeded in [the] manner required by law.’ [Citations.]” [Citation.]
As for the first prong of the exception–whether the project presents circumstances that are unusual for projects in an exempt class–this question is essentially a factual inquiry for which the lead agency serves as “ ‘the finder of fact.’ ” [Citation.] Thus, reviewing courts apply the traditional substantial evidence standard incorporated in section 21168.5 to this prong. [Citation.] Under that relatively deferential standard of review, our role in considering the evidence differs from the agency's. (Ibid.) “ ‘ “Agencies must weigh the evidence and determine ‘which way the scales tip,’ while courts conducting [traditional] substantial evidence ... review generally do not.” ’ [Citation.] Instead, reviewing courts, after resolving all evidentiary conflicts in the agency's favor and indulging in all legitimate and reasonable inferences to uphold the agency's finding, must affirm that finding if there is any substantial evidence, contradicted or uncontradicted, to support it. [Citations.]” (Ibid.)
As for the second prong of the exception–whether there is “reasonable possibility” that an unusual circumstance will produce “a significant effect on the environment”–our high court has said “a different approach is appropriate, both by the agency making the determination and by reviewing courts.” [Citation.] “[W]hen there are ‘unusual circumstances,’ it is appropriate for agencies to apply the fair argument standard in determining whether ‘there is a reasonable possibility of a significant effect on the environment due to unusual circumstances.’ ” (Ibid. italics added.) Under the fair argument test, “ ‘an agency is merely supposed to look to see if the record shows substantial evidence of a fair argument that there may be a significant effect. [Citations.] In other words, the agency is not to weigh the evidence to come to its own conclusion about whether there will be a significant effect. It is merely supposed to inquire, as a matter of law, whether the record reveals a fair argument.... “ ‘[I]t does not resolve conflicts in the evidence but determines only whether substantial evidence exists in the record to support the prescribed fair argument.’ ” [Citation.]’ ” [Citation.] Thus, a lead agency must find there is a fair argument even when presented with other substantial evidence that the project will not have a significant environmental effect. [Citation.] Accordingly, where there is a fair argument, “a reviewing court may not uphold an agency's decision ‘merely because substantial evidence was presented that the project would not have [a significant environmental] impact. The [reviewing] court's function is to determine whether substantial evidence support[s] the agency's conclusion as to whether the prescribed “fair argument” could be made.’ ” [Citation.] Thus, the “agency must evaluate potential environmental effects under the fair argument standard, and judicial review is limited to determining whether the agency applied the standard ‘in [the] manner required by law.’ ” [Citation.]
In the second alternative for proving the unusual circumstance exception, “a party may establish an unusual circumstance with evidence that the project will have a significant environmental effect.” [Citation.] “When it is shown ‘that a project otherwise covered by a categorical exemption will have a significant environmental effect, it necessarily follows that the project presents unusual circumstances.’ [Citation.]” [Citation.] But a challenger must establish more than just a fair argument that the project will have a significant environmental effect. [Citation.] A party challenging the exemption, must show that the project will have a significant environmental impact. (Ibid.) Again, as our high court has noted, we review the determination of the unusual circumstances prong of the exception under the deferential substantial evidence test. [Citation.]
As for the second prong under this second alternative, no other proof is necessary. Evidence that a project will have a significant environmental effect, “if convincing, necessarily also establishes ‘a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.’ [Citation.]” [Citation.]
Accordingly, courts have come to apply a 2-step test for determining whether “unusual circumstances” may cause a significant impact so that the exception applies and an agency may not rely on an exemption. Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, at 1096-1117; Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn. (App. 3 Dist. 2015) 242 Cal.App.4th 555, 573-574; Azusa Land Reclamation Co., Inc. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1207. Under this test, Respondent must consider if there are “unusual circumstances” and the court will uphold the Respondent’s determination if substantial evidence supports it. Berkeley Hillside, 1114; Citizens for Environmental Responsibility, 574. As explained in Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449, at 456-457,
the Supreme Court explained that whether a project presents unusual circumstances—the first element needed to establish the applicability of the unusual-circumstances exception—“is an essentially factual inquiry,” and a court applies “the traditional substantial evidence standard.” [Citation.] “Under that relatively deferential standard of review, ... reviewing courts, after resolving all evidentiary conflicts in the agency’s favor and indulging in all legitimate and reasonable inferences to uphold the agency’s finding, must affirm that finding if there is any substantial evidence, contradicted or uncontradicted, to support it.” [Citation.]
Respondents must then determine if those unusual circumstances give rise to a reasonable possibility that the activity will have a significant effect, which the court review under the stricter, less deferential, fair-argument standard. Berkeley Hillside, supra; Citizens for Environmental Responsibility, supra. In the words of Citizens for Environmental Responsibility, at 574, ‘ “[t]he determination as to whether there are ‘unusual circumstances’ [citation] is reviewed under section 21168.5’s substantial evidence prong. However, an agency's finding as to whether unusual circumstances give rise to ‘a reasonable possibility that the activity will have a significant effect on the environment’ [citation] is reviewed to determine whether the agency, in applying the fair argument standard, ‘proceeded in [the] manner required by law.’ [Citations.]” [Citation.]’
As the court put it in Azusa, at 1207, “the circumstances of a particular project (i) differ from the general circumstances of the projects covered by a particular categorical exemption, and (ii) those circumstances create an environmental risk that does not exist for the general class of exempt projects.” The Supreme Court noted in Berkeley Hillside, at 1105, “to 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.”
The court in Citizens for Environmental Responsibility, supra, 242 Cal.App.4th at 589, explained the process for challenging application of an exemption based on the argument that the project falls within the “unusual circumstances” exception to the exemptions. It stated,
We now turn to the alternate way a challenger can establish the unusual circumstances prong of the unusual circumstances exception. While our high court in Berkeley Hillside held that a mere reasonable possibility a project may have a significant environmental effect is insufficient to establish the unusual circumstances exception (Berkeley Hillside, supra, 60 Cal.4th  at pp. 1097, 1104…), the court also held that “a party may establish an unusual circumstance with evidence that the project will have a significant environmental effect.” (Id. at p. 1105…, italics added.) The reason for this alternative method is that “evidence that the project will have a significant effect does tend to prove that some circumstance of the project is unusual.” (Ibid.) This method of proving unusual circumstances requires that the project challenger provide more than “ ‘substantial evidence’ of ‘a fair argument that the project will have significant environmental effects.’ ” (Id. at p. 1106….) A project challenger must prove that the project will have a significant effect on the environment. (Id. at p. 1105….) Thus, a challenger seeking to prove unusual circumstances based on an environmental effect must provide or identify substantial evidence indicating: (1) the project will actually have an effect on the environment and (2) that effect will be significant. (Ibid.) A “significant effect on the environment” is “a substantial adverse change in the physical conditions which exist in the area affected by the proposed project.” (Guidelines, § 15002, subd. (g).)
Finally, the court’s review differs where the agency made an implied rather than an express finding that the unusual circumstances exception does not apply, without providing an express finding on the different steps. Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449, 458. As set forth in Respect Life, “when the entity makes an implied determination that the unusual-circumstances exception is inapplicable.” Emphasis added. The court pointed out that the agency there had not made express findings on the unusual circumstances exception but made only implied findings, making it impossible to determine the basis for the agency’s decision or how it found on either element. The court explained, with emphasis added, at 457-458,
The City made no explicit findings on either of the two elements. Thus, while we know that the City found against Respect Life on at least one of the elements, we cannot say with certainty whether it found against Respect Life on the first element, the second element, or both.
When an entity’s determination that the unusual-circumstances exception is inapplicable is implied, a court’s ability to affirm is constrained. The court may affirm on the basis of the first element—which, again, asks whether the project presents any unusual circumstances—only if the court assumes that the entity found that there were unusual circumstances and then concludes that the record does not contain substantial evidence of any such circumstances. A court cannot, however, affirm on the basis of the first element by simply concluding that the record contains substantial evidence that there are not unusual circumstances. This is because such an approach fails to address the possibility that the entity thought there were unusual circumstances but concluded, under the second element, that these circumstances did not support a fair argument of a reasonable possibility of a significant environmental effect.
In short, a court cannot affirm an entity’s implied determination that the unusual-circumstances exception is inapplicable by simply concluding that the record contains substantial evidence that the project involves no unusual circumstances. Instead, to affirm such an implied determination, the court must assume that the entity found that the project involved unusual circumstances and then conclude that the record contains no substantial evidence to support either (1) a finding that any unusual circumstances exist (for purposes of the first element) or (2) a fair argument of a reasonable possibility that any purported unusual circumstances identified by the petitioner will have a significant effect on the environment (for purposes of the second element).
The court therefore explained that where an agency fails to make explicit findings on the two prongs, a court may not simply assume that the agency found there to be no unusual circumstances, i.e. the first prong. It must instead move to the second prong, and apply the standard of review generally more favorable to a petitioner, of whether substantial evidence supports a fair argument that the project may result in significant impacts due to unusual circumstances.
Under the substantial-evidence test, the court must uphold the decision if it is supported by substantial evidence in the record as a whole. Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1075; see River Valley Preservation Project v. Metropolitan Transit Dev. Bd.(1995) 37 Cal.App.4th 154, 166; see Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 703. The court must focus upon the THP’s “sufficiency as an informative document.” Laurel Heights I 47 Cal.3d 393. The evidence must be sufficient to allow one to make an intelligent, informed decision, i.e., sufficient to make clear the analytic route of the agency. Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association (1986) 42 Cal.3d 929, 936; Al Larson Boat Shop Inc. v. Bd. of Harbor Commissioners (1993) 18 Cal.App.4th 729, 749; Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 513-514, 522.
When applying the substantial-evidence standard, in other words, the court must focus not upon the “correctness” of a report’s environmental conclusions, but only upon its “sufficiency as an informative document.” Laurel Heights I 47 Cal.3d 393. The court must resolve reasonable doubts in favor of the findings and decision. Id. The findings of an administrative agency are presumed to be supported by substantial evidence. Taylor Bus. Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331.
Substantial evidence is not simple “uncorroborated opinion or rumor” but “enough relevant information and reasonable inferences” to allow a “fair argument” supporting a conclusion, in light of the whole record before the lead agency. 14 CCR section 15384(a); PRC §21082.2; City of Pasadena v. State of California (2nd Dist.1993) 14 Cal.App.4th 810, 821‑822. Other decisions define “substantial evidence” as that with “ponderable legal significance,” reasonable in nature, credible, and of solid value. Stanislaus Audubon Society, Inc., v. County of Stanislaus (1995) 33 Cal.App.4th 144.
Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. PRC §21082.2(c); see also Guidelines 15064(g)(5), 15384. It does not include argument, speculation, unsubstantiated opinion or narrative, clearly incorrect evidence, or social or economic impacts not related to an environmental impact. Guideline 15384.
Fair Argument Test
Under the fair argument test, an agency must not weigh evidence and must instead find that there may be significant environmental effects as long as substantial evidence in the record before it demonstrates a fair argument that such effects may result. Citizens for Environmental Responsibility, supra, 242 Cal.App.4th, at 574-576. The court likewise must review the agency’s decision under this test in the same manner so that if such evidence supports such a fair argument, and the agency instead found no such possibility of significant effects, the court must overturn the agency’s decision on that point. Ibid.
Whether Substantial Evidence Supports the Exemption Finding
Petitioner contends that substantial evidence does not support it since Respondent manipulated and improperly calculated student capacity and ignored evidence contrary to its determination.
The Project includes transferring all Laguna students, faculty, and staff to the El Molino Campus, thus vacating the Laguna Campus. AR 1, 2. It consolidated all 553 students from El Molino to the Analy Campus and Laguna Campus, which, as the Resolution states, had, after the transfer of the Laguna students, a combined excess capacity of 699. Ibid. The Project expressly does not require, or include, construction of any new classrooms, buildings, or other facilities because Respondent found that the Project’s transfers of students, faculty, and staff can be accommodated within the existing campuses’ facilities and grounds. AR 1-8.
Evidence of Student Capacity
Petitioner first contends that Respondent failed to determine the “original student capacity” of the receiving schools and merely “manipulated” capacity numbers. This is based on the Class 14 requirement, as stated above, that the exemption only applies “where the addition does not increase original student capacity by more than 25% or ten classrooms, whichever is less.” Resolution 10 states that the “original student capacity” of the Analy Campus is 1,639, El Molino Campus is 1,193, and Laguna Campus is 214. AR 2. It stated that there were at the time 1,154 students at Analy, 553 at El Molino, and 88 at Laguna, resulting in available capacity of 485 at Analy, 640 at El Molino, and 126 at Laguna. AR 2. As explained above, the Project includes transferring all Laguna students, faculty, and staff to the El Molino Campus, thus vacating the Laguna Campus. Ibid. It consolidated all 553 students from El Molino to the Analy Campus and Laguna Campus, which, as the Resolution states, had, after the transfer of the Laguna students, a combined excess capacity of 699. Ibid.
These numbers were based on an analysis which the District’s architect conducted on November 13, 2020 regarding the existing original capacity of each campus and Respondent relies on this analysis. AR 3691-3693. This report provides numbers based on the number of classrooms, considering code egress limits for the “maximum people allowed… in the room per fire code” with 2 subtracted to account for teachers, all set forth in the report. It then limits the numbers to 35 per class even for large rooms such as wood shop which can accommodate 68 people. The numbers were then multiplied by 6/7 to reduce the number in order to reflect the fact that 7th period would likely not be fully loaded. The report also did not include the space available in the Analy autoshop, did not include the administration or then-existing district office space or an apparent portable at between the district office and Laguna, so, as noted above, the report expressly did not include some potential space in the Analy and Laguna campuses. It also specified separate numbers for conducting two PE classes and specified the numbers for special-education classed.
This report on its face amounts to substantial evidence. It is detailed analysis, resulting in specific numbers, based on stated criteria, and it is a report from an architect.
Respondent relied on the report and made its findings based squarely on what the report said. In fact, Respondent unequivocally relied on the smaller number in the report, the 35-student limit, rather than the larger number in making its decision. Resolution 10 clearly states that the capacity which Respondent found is exactly what the lower figures from the report show. AR 8. The findings are thus taken directly from, and are fully consistent with, the smaller figures in the report provided to Respondent. The resolution then finds that the capacity is more than enough to accommodate the incoming students from El Molino, with the math being clear and unequivocal in showing this determination to be correct based on the evidence provided in the architect’s report.
Petitioner claims that Respondent “manipulated” and improperly calculated the original student capacity but fails to demonstrate this. It cites to a report from the same architect, a presentation at the board meeting, provided in a video recording of the board meeting with link at AR 2286, as “[t]he only presentation” on the issue. This assertion by Petitioner is clearly not correct, given the written report provided to Respondent by e-mail, discussed above. Moreover, this report also informs Respondent and the public that, in the analysis of the architect, the Analy Campus and Laguna Campus can accommodate all of the students within the existing original student capacity, without expanding it at all. See AR 2286, Video starting at 21:20-29:00. This provides detailed discussions of the facilities and, under various modification options, details what changes to the buildings would or would not be required, the changes being in the form of updating HVAC and similar equipment or, at the more extreme end, moving internal walls. Regardless, the report contains details on the capacity and is clear that the campuses have more then enough room to accommodate all of the students as determined in Resolution 10. Variations include studies on the relative feasibility and cost of different options of how specifically to organize the classrooms, with no issue over the student capacity.
Petitioner next relies on evidence showing that some school functions will operate at the El Molino Campus, anyway. In part, this is based on post-approval/post-NOD evidence presented in Petitioner’s motion to augment record which this court denied and the court here disregards such evidence and analysis. Such evidence was not part of the record before the Respondent when it made its decision. Otherwise, this argument is based on evidence from AR 3318-3330. This evidence, however, only shows that some programs will, at least for a time, be offered at the El Molino Campus. This does not mean that the Analy and Laguna Campuses lack the student capacity as required, or that Respondent’s decision and findings lack the support of substantial evidence, much less that substantial evidence does not support the findings required to fall within Class 14 exemption as detailed above.
Finally, Petitioner’s argument that there is contrary evidence which Respondent ignored is improper given the applicable standard of review. As explained above, and as both sides appear to agree, the court must uphold the finding and decision that the Class 14 exemption applies as long as substantial evidence in light of the whole record supports the finding and the decision. This is regardless of the amount or nature of evidence which may conflict with the supporting evidence. The evidence contrary to the findings and decision would have material importance were the court required to apply the fair-argument test, which does not apply here.
The court finds there to be substantial evidence in the record which supports Respondent’s decision that the Project falls within the Class 14 categorical exemption. Petitioner fails to demonstrate otherwise.
Exceptions to the Exemptions
Petitioner asserts that the Project falls within the exceptions to the exemption, citing the “cumulative impacts” and “unusual circumstances” exceptions.
Petitioner claims that Analy is an old school campus and “lacks any significant recent updates” while evidence indicated that significant upgrades and renovation would be required for the campus, while claiming that parking at the Analy campus is already insufficient. However, Petitioner fails to articulate clearly what unusual circumstances exist and what significant effects may arise from them, and fails to present substantial evidence supporting a fair argument that such circumstances may cause significant effects. Nothing in Petitioner’s argument or the minimal evidence cited in the record shows that the few, vague circumstances on which Petitioner relies are unusual or how they may cause significant impacts, or what these impacts actually might be.
Importantly, even if evidence may support a fair argument of possible significant impacts, this alone is not enough to bring a project within an exception to the exemptions, as long as the agency has properly found the project to be within an exemption. Petitioner must show that the potential significant impacts meet the criteria of the specific exceptions. Thus, it must point to evidence showing either cumulative impacts meeting the standard for the “cumulative impacts” exception or, for the “unusual circumstances” exception, it must show that the potential significant impacts result from the unusual circumstances; it is not enough that there may be potential significant impacts if they do not result from the unusual circumstances. Petitioner has failed to do either.
In this instance, Respondent actually made an express finding regarding the unusual circumstances exception, Resolution 10 stating that “the District is unaware of any unusual circumstances that would negate the use of the Class 14 Categorical Exemption….” AR 3. Accordingly, the standard of review requires the court to uphold this determination as long as substantial evidence supports the determination that there are no unusual circumstances. In any case, Petitioner has failed to demonstrate substantial evidence which may support a fair argument that any unusual circumstances may cause significant environmental effects.
Petitioner mentions cumulative impacts but fails to provide any evidence, analysis, or explanation of any sort regarding this issue.
The court, therefore, finds that the record does not show that the Project falls within and exception to the exemption, and Petitioner fails to demonstrate the application of an exception under the applicable standards of review.
Nature of the Current Project as Implemented
Petitioner next contends that the Project as actually implemented is different from the Project as approved, claiming that the approved Project “no longer exists.” It contends that an agency may not simply carry over a CEQA determination for a new and different project and that the CEQA proceedings must be based on an accurate, stable, and finite project description. Petitioner explains that the Project is different because it now involves changing the name, colors, and team names of Analy, not something discussed in the proceedings in November 2020; District will offer some programs at El Molino as well as Analy, rather than simply offering all at Analy as originally discussed in the approval of November 2020; and these changes mean that the Project as implemented will cause greater environmental impacts regarding traffic.
Preliminarily, as this court has explained above and in the ruling on the motion to augment the administrative record, any challenge based on the assertion that the Project as currently being implemented is different from that as approved is beyond the scope of this litigation. The petition expressly challenges the approval of the Project as defined in the Resolution 10 and the NOE. Any claim that the current Project is new or different from that as approved has absolutely no bearing on the validity of the approval being challenged. This does not mean that any new project, or implementation differing from the Project as approved is insulated from legal challenge but such a claim is beyond the scope of this petition and unrelated to whether the approval of the Project as set forth in that approval, or the adoption of the NOE, violates CEQA.
Petitioner’s arguments, in any case, are unpersuasive. Nothing demonstrates in any way that the decision merely to change the name of the Analy school, along with its colors and team names, implicates CEQA in any way, results in a new or different Project, meets the definition of “project” under CEQA, or has any potential whatsoever for creating, directly or indirectly, any possible environmental impacts. CEQA, after all, defines “project” as “the whole of an action” or activity “which may cause either a direct… or reasonably foreseeable indirect physical change in the environment.” PRC section 21065; Guideline 15378. Similarly, Petitioner presents no evidence that the alleged change in continuing to use the El Molino Campus may possibly lead to increased traffic impacts, while, as Respondent notes, the Project as set forth and approved in Resolution 10 still clearly envisions using the El Molino Campus for some class uses. Petitioner also provides no explanation or evidence which may support any inference that possible changes as to which classes and students will be using the El Molino Campus has any bearing on CEQA, any possibility of environmental impacts, or will constitute a new or different project, or improper alteration of the approved Project in violation of CEQA. Petitioner also provides no evidence, analysis, or explanation as to how continuing to hold classes, but simply fewer or different classes, in an existing school facility could possibly amount to a new or different project, or, indeed, a “project” under CEQA at all. Petitioner contends that moving district offices from the Laguna Campus to the El Molino Campus is also a change, since it is not in the Resolution 10. Petitioner is correct that neither Resolution 10 nor the NOE expressly states that the district offices will be transferred to the El Molino Campus but they do state that the students, faculty and staff will be transferred from the Laguna Campus to the El Molino Campus, which on its face may include the staff of the district office at the Laguna Campus. AR 2-8. Moreover, nothing shows that simply moving the employees and functions of the district office from one campus to another as any bearing on the Project analysis, CEQA, environmental impacts, or applicability of the exemption, or in any ways renders this Project as implemented different from it as approved in a way that would change this into a new or different project, violate CEQA, or require further CEQA review. Also, as with changing the Analy name, there is no indication whatsoever in the record or Petitioner’s arguments that simply moving the office functions could possibly amount to a “project” as defined in CEQA, or that it has an direct or foreseeable indirect physical effect on the environment.
Even if Petitioner is also claiming that the alterations to the campus buildings, limited to upgrades and interior modifications and the like of existing buildings, any such argument is likewise unpersuasive. As explained above, Resolution 10 states that Respondent found the Project to be within the Class 14 categorical exemption, which encompasses not just increases in students but “minor additions” which may include physical additions or alterations. As stated above, the exemption covers “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….” This clearly contemplates some “minor” physical alterations and additions to the schools such as additional “classrooms” and “addition of portable classrooms,” as potentially falling within the exemption, and it is not limited simply to adding more students. This Project as approved and as implemented evidently does not involve any new building construction at all. The Project as approved included, prior to approval, consideration of both alternatives and methods for implementing the Project, as set forth in feasibility studies. See AR 2238, et seq. Nothing shows that the specific methods of implementation such as altering internal wall configurations or updating building mechanical equipment, for existing buildings, is different from the Project as approved our outside the scope of the exemption. The implementation therefore appears to be consistent with both the approval and the exemption.
Finally, Petitioner argues that Respondent has improperly segmented the Project. However, the argument in this portion of its brief fails to explain what the improper segmentation is. This court, and Respondent, recognize that segmentation or piecemealing of a project, by which CEQA review is limited to smaller portions of what is in fact one larger, connected project, violates CEQA and there is no dispute about that. What Petitioner fails to do is demonstrate, or even clearly explain, what the improper segmentation was. It merely refers vaguely to “expansion and modifications to the Project” without saying what these are or how they are improper segmentation. OB 24:11-25; Reply 13:24-14:7.
Assuming that Petitioner refers to the changes related to the Analy names and colors, transfer of district office staff and functions to the El Molino Campus, the decision about which programs and students to send to the El Molino Campus, and possibly interior modifications or upgrades to the Analy buildings, this argument is still unpersuasive.
Respondent notes that alterations or upgrades to the existing facilities and buildings, limited to renovation and interior elements such as moving walls or upgrading HVAC systems, are elements of feasibility studies presented during the Project proceedings prior to approval. These include a presentation on October 7, 2020. AR 2240, et seq. The study presented at the hearing presented the Project was one of several alternatives as well as different options for how to implement the Project by modifying the various campuses and, as noted, included upgrades or modifications to the existing buildings an facilities, not new construction. These also are simply, as Respondent further notes, different options for how specifically to implement the Project, costs and feasibility. Nothing shows that the Project as considered and approved did not include these options for implementation. They were presented as specific details of how to implement the Project, which always remained the Consolidation and transfer of students, class programs, offices, and the like, between the three campuses, and the Project approval in Resolution 10 seems, from the record, to inherently include one or more of these options. Once again, the work modifying and upgrading the campus buildings appears to have been considered prior to the Project approval, appears to be consistent with the Project as approved, appears to be nothing more than details of the implementation of the Project as approved, and appears to fall within the Class 14 exemption. Petitioner fails to demonstrate otherwise.
As explained above, this petition challenges the approval of the Project defined above, and whether that approval decision violates CEQA. The court finds that this petition is untimely based on the statute of limitations. The approval was made and complete by the date on which Respondent published the NOE, December 1, 2020, and Petitioner failed to file this action until April 21, 2021, long after the 35-day limitations period had expired. Petitioner, moreover, is guilty of laches and the court further finds this to be also a basis for denying the petition. Even if the action were timely and Petitioner were not guilty of laches, however, substantively the court finds the petition unpersuasive for the reasons explained above, briefly because substantial evidence supports the exemption determination, Respondent expressly found there to be no unusual circumstances bringing the Project within the “unusual circumstances” exception to CEQA exemptions, Petitioner has failed to demonstrate any basis for finding any exception to the exemptions to apply, Petitioner has failed to demonstrate improper segmentation, Petitioner has failed to demonstrate that the Project as approved lacked a definite, clear, and stable project description, Petitioner fails to demonstrate that the Project has been altered in implementation, and, in any case, Petitioner’s arguments about possible subsequent changes to the Project during implementation are distinct from, and have no bearing on, the propriety of the approval itself.
The court therefore DENIES the petition in full. The prevailing party shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter. Opposing counsel shall inform the preparing counsel of objections as to form, if any, or whether the form of order is approved, within five days of receipt of the proposed order. The preparing party shall submit the proposed order and any objections to the court in accordance with California Rules of Court, Rule 3.1312.