H041088IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIASIx’rH APPELLATE DISTRICT

SAN JOSE UNIFIED SCHOOL DISTRICTAND BRETT BYMASTER,

Plaintiffs and Respondents,V.

SANTA CLARA COUNTY OFFICE OF EDUCATION;BOARD OF TRUSTEES OF THE SANTA CLARA COUNTY OFFICE OFEDUCATION; ROCKETSHIP EDUCATION; AND ROCKETSHIP EIGHT

CHARTER SCHOOL,Defendants andAppellants.

APPEAL FROM SUPERIOR COURT FOR THE COUNTY OF SANTA CLARAHON. FRANKLIN E. BONDONNO, JUDGE

CASE Nos. 113CV241695 AND 113CV241932

APPELLANTS’ OPENING BRIEF

AKIN GUMP STRAUSS HAUER &FELD LLP

*REX S. HEINKE (SBN 066163)RHEINKE@AMNGUMP.COM

MICHAEL C. SMALL (SBN 222768)MSMALL@AKINGUMP.COM

ANDREW OELZ (SBN 216885)AOELZ@AKINGUMP.COM

2029 CENTURY PARK EAST, SUITE 2400Los ANGELES, CA 90067TELEPHONE: 310.229.1000FACSIMILE: 310.229.1001

SANTA CLARA COUNTY OFFICE OFEDUCATION

MARIBEL S. MEDINA (SBN 189512)MARIBEL MEDINA@SCCOE.ORG1290 RIDDER PARKDR. MC243SAN JOSE, CA 95131TELEPHONE: 408.453.4267FACsIMILE: 408.453.3653

YOUNG, MINNEY & CORR, LLPPAUL C. MINNEY (SBN 166989)PMINNEY@MYCHARTERLAW.COM701 UNIVERSITY AVE., SUITE 150SACRAMENTO, CA 95825TELEPHONE: 916.646.1400FACSIMILE: 916.646.1300

ATI’ORNEYS FOR APPELLANTS SANTA CLARA CoUNTY OFFICE OF EDUCATION;BOARD OF TRUSTEES OF THE SANTA CLARA COUNTY OFFICE OF EDUCATION;

ROCKETSHIP EDUCATION; AND ROCKETSHW EIGHT CHARTER SCHOOL

CERTIFICATE OF INTERESTED ENTITIES AND PARTIES

[Cal. Rules of Court, Rule 8.208]Appellants Santa Clara County Office of Education and the Board of

Trustees of the Santa Clara County Office of Education are governmententities. Appellants Rocketship Education and Rocketship Eight CharterSchool are non-governmental/not-for-profit entities, and no other entity orperson has either (1) an ownership interest of 10 percent or more in them,or (2) a financial or other interest in the outcome of the proceeding that thejustices should consider in determining whether to disqualify themselves.

TABLE OF CONTENTS

Page

INTRODUCTION 1

STATEMENT OF THE CASE 2

A. Factual Background 2

1. Rocketship Selects a Location for ProposedCharter Elementary School Based on ItsProximity to Underserved Students 2

2. After Consulting with and Receiving FavorableSupport from the City of San Jose, the CountyBoard of Education Approves a Section 53094Exemption Allowing Rocketship’s ProposedSchool Project to Proceed 4

B. Procedural History 6

STATEMENT OF APPEALABILITY 7

STANDARD OF REVIEW 7

LEGAL DISCUSSION 7

The Zoning Override Authority in Section 53094 ofthe Government Code Applies to County Boards ofEducation 9

A. The Historic or Common Usage of the Term“School District” Encompasses All PublicAgencies Overseeing Public Schools 9

B. The Legislative History of Section 53094 andEducation Code Sections 35160 and 35160.2Confirm that County Boards of Education HaveZoning Override Authority 13

1. The Legislative History of GovernmentCode Section 53094 14

2. The Legislative History of EducationCode Sections 35160 and 35160.2 19

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C. Pursuant to the Longstanding AdministrativeConstruction of Section 53094, County Boardsof Education Have Exercised ZoningExemption Authority for Decades 22

D. The Trial Court’s Interpretation of GovernmentCode Section 53094 Would Violate theCalifornia Constitution and Lead to Absurd andHarmful Consequences 24

II. CONCLUSION 28

CERTIFICATE OF COMPLIANCE 29

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TABLE OF AUTHORITIES

Page(s)CASES

Barnhart v. Peabody Coal Co.(2003) 537 U.S. 147 19

City ofSanta Clara v. Santa Clara Unified Sch. Dist.(1971) 22 Cal.App.3d 152 15, 19

City ofSanta Cruz v. Santa Cruz Sch. Bd. ofEducation(1989) 210 Cal.App.3d 1 16

City ofSaratoga v. Huff(1972) 24 Cal.App.3d 978 18

County ofLos Angeles v. Superior Court(1941) 17 Cal.2d 707 22

Dyna-Med, Inc. v. Fair Employment & Housing Comm ‘n(1987) 43 Cal.3d 1379 8, 24

Governing Bd. ofRipon Unified Sch. Dist. v. Commission onProfessional Conduct (2009) 177 Cal.App.4th 1379 21

Hall v. City of Taft(1956) 47 Cal.2d 177 14, 15, 16, 18, 24

Hartzell v. Connell(1984) 35 Cal.3d 899 20

In ref. W.(2002) 29 Cal.4th 200 19

In re Sabrina H.(2007) 149 Cal.App.4th 1403 19

Kerr’s Catering Serv. v. Department ofIndus. Relations(1962) 57 Cal.2d 319 22

Los Angeles Unified Sch. Dist. v. Garcia(2013) 58 Cal.4th 175 18

Lungren v. Deukmejian(1988) 45 Cal.3d 727 7, 8

111

O’Grady v. Superior Court(2006) 139 Cal.App.4th 1423 18

Pasadena Univ. v. Los Angeles County(1923) 190 Cal. 786 8

People ex rel. Cooper v. Rancho Santiago College(1990) 226 Cal.App.3d 1281 16, 24

People v. Pieters(1991) 52 Cal.3d 894 7

Piper v. Big Pine Sch. Dist.(1924) 193 Cal. 664 15

Rosenfleld v. Superior Court(1983) 143 Cal.App.3d 198 9

Ste. Marie v. Riverside County Regional Park & Open Space Dist.(2009) 46 Cal.4th 282 22

Taxpayers forAccountable Sch. Bond Spending v. San DiegoUnified Sch. Dist. (2013) 215 Cal.App.4th 1013 7

Today’s Fresh Start, Inc. v. Los Angeles County Office ofEducation(2013) 57 Cal.4th 197 12, 13, 26

Torres v. Parkhouse Tire Service, Inc.(2001) 26 Cal.4th 995 8

Town ofAtherton v. Superior Court(1958) 159 Cal.App.2d 417 14, 15, 18, 25

Wilson v. State Bd. ofEduc.(1999) 75 Cal.App.4th 1125 3, 11

CALifoRNIA CONSTITUTION AN]) STATUTES

Cal. Const.art. IX, § 6 14, 16art. IX, § 7 10art. XIII, § 1(b)(3) 12

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Educ. Code§2 8§80 13§ 1000 10§ 1042(a) 10§ 1047 12§ 1790-1809 11§1793 12§ 1920-1924 11§ 1980-1986 11§ 8320-8331 11§8746-8765 11§ 35160 13,14,19,20§35160.1 20,21§ 35160.2 13, 14, 20, 21§ 42127.8 23§ 47600 Ct seq 26§ 47601 26,27§ 47605(j) 10, 11§ 47605.5 10, 11, 26§ 47605.6 10, 11, 12, 26§ 47607(c) 10, 11§ 48645-48648 11§ 52300-52334.5 11§ 54440-54445 11§56000 et seq 11§ 70900 et seq 13

Gov. Code§ 53094 passim§ 53094(a) 25§ 53094(b) 1, 4§ 65860(a) 3

Stats, of 1959, ch. 2110 16

Stats, of 1986, ch. 1124 21

RULES

Cal. Rules of CourtRule 8.104(a) 7

V

OTHERAUTHORITIES

85 Ops. Cal. Atty. Gen. 167 (2002) .17

Black’s Law Dictionary, 10th ed. 2014 9

MacMillan Dictionary 9

Merriam-Webster Dictionary 9

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INTRODUCTION

Government Code section 53094(b) provides that the governingboard of a “school district” by a two-thirds vote “may render a city orcounty zoning ordinance inapplicable to a proposed use of property by theschool district.” Appellant Santa Clara County Board of Education (the“County Board”) invoked this authority to exempt a charter schoolproposed by Appellants Rocketship Education and Rocketship EightCharter School from the City of San Jose’s (“City’s”) local zoning controls.The City agreed with this decision.

Respondent San Jose Unified School District (“SJUSD”) competeswith charter schools. Respondent Brett Bymaster (“Bymaster”) lives nextdoor to the property on which the Rocketship charter school was to be built,and asserts that the school would have a direct impact on the use and valueof his property. Respondents filed this litigation, contending that Section53094(b) may be utilized only by local school districts, and not by otherstate agencies operating public schools, here a county board of education.The trial court agreed and issued a writ of mandate ordering the CountyBoard to set aside its zoning override decision.

The trial court erred as a matter of law. As discussed below, thezoning override authority set forth in Government Code section 53094(b)applies to all “school districts,” including those run by county boards ofeducation. In reaching a contrary conclusion, the trial court (1) ignored thecommon and historic usage of the term “school district,” whichencompasses all public agencies overseeing public schools; (2) overlookedthe intent of the Legislature to provide all public agencies operating publicschools equal authority to override local zoning controls; and (3)disregarded longstanding administrative construction of Section 53094recognizing the authority of county boards of education, as well ascommunity college districts, to utilize the zoning override.

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The trial court’s interpretation also contravenes canons of statutoryconstruction because it would violate the California Constitution and leadto absurd and harmful consequences. Indeed, the trial court’s interpretationof the term “school district” would violate article IX, section 6 of theCalifornia Constitution by impermissibly placing public schools operatedby county boards of education under municipal regulatory control. Thetrial court’s interpretation would also lead to an arbitrary distinctionbetween local school districts and county boards of education and defeatthe Legislature’s express goal under the Charter Schools Act to provide“vigorous competition within the public school system to stimulatecontinual improvement in all public schools.”

STATEMENT OF THE CASE

A. Factual Background

1. Rocketship Selects a Location for Proposed CharterElementary School Based on Its Proximity to UnderservedStudents.

Rocketship Education (“Rocketship”) operates a network of free,public charter schools serving traditionally underserved studentpopulations. (3AA 577, 623.)1 In 2009 and 2011, the County Boardgranted Rocketship a charter to operate 25 charter schools in Santa ClaraCounty, 24 of which were to be located within the City of San Jose. (3AA541, 549-555, 622.) Thereafter, Rocketship proposed to locate a new K-5public charter school on 0.6 acres of a 3.5-acre vacant lot owned by theCity and within the boundaries of the SJUSD. (3AA 569.) The proposedschool was known as the Rocketship Eight Charter School. (2AA 468;

1 The Appellants’ Appendix (“AA”) is filed concurrently. The AAincludes, among other things, exhibits that were submitted by Appellants inopposition to the respective petitions for writ of mandate. (3AA 540—4AA1007.) The trial court took judicial notice of those exhibits. (5AA 1268.)

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3AA 623.) Rocketship hoped to open the school in August 2013. (3AA589.)

Rocketship chose the site for the school because of its proximity tothe student population its schools are designed to serve (e.g., Englishlanguage learners and socioeconomically disadvantaged students) andbecause of the enrollment and performance characteristics at the nearbySJUSD schools.2 (2AA 468.) Rocketship also chose the location becauseits existing charter schools in the area were heavily oversubscribed,suggesting that parents and students in the area were seeking charterschools as alternative public schools.3 (Ibid.) Rocketship’s proposedschool included a two-story building to accommodate up to 600 students, aparking lot, shade structures, and outdoor play areas that would be sharedby Rocketship and the City under a joint use agreement. (3AA 569, 576-581.)

Rocketship’s proposed use of the property for a school was,however, incompatible with the City’s general plan and zoning ordinance.(3AA 571-573.) Because the City recently had adopted a new general plan,it informed Rocketship it would not consider requests for general planamendments until late 2013. (5AA 1229-1230.) Consequently,

2 The three elementary schools within a one mile radius of theproposed school site scored in the bottom half of the elementary schoolslocated in the SJUSD, ranking as its third, tenth, and eleventh worstelementary schools, as measured by the statewide Academic PerformanceIndex. (3AA 694-713.)

“[C]harter schools are part of California’s single, statewide publicschool system.” (Wilson v. State Bd. ofEduc. (1999) 75 Cal.App.4th 1125,1137.)

Because land uses authorized by a zoning ordinance must becompatible with the objectives, policies and land uses specified in a generalplan (Gov. Code, § 65860, subd. (a)), the City would not have been able tosimply amend its zoning ordinance to provide for the requisite zoningwithout an accompanying general plan amendment.

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Rocketship’s only option for obtaining authorization to use the property forits proposed school in time to open the school in August 2013 was for it toapply to the County Board of Education, which had provided its charter, foran exemption from the City’s general plan and zoning ordinance pursuantto Government Code section 53094. (Ibid.) Section 53094(b) provides that“the governing board of a school district,. . . by a vote of two-thirds of itsmembers, may render a city or county zoning ordinance inapplicable to aproposed use of property by the school district.” (Gov. Code, § 53094,subd. (b).)

2. After Consulting with and Receiving Favorable Supportfrom the City of San Jose, the County Board of EducationApproves a Section 53094 Exemption AllowingRocketship’s Proposed School Project to Proceed.

On July 19, 2012, Rocketship submitted a request to the CountyBoard of Education and the County Office of Education requesting that theBoard adopt a Government Code section 53094 exemption from the City’sgeneral plan and zoning ordinance for the school. (1AA 35.)

On August 14, 2012, the County Board of Education held a specialmeeting at which it received oral and written comments from SJUSDrepresentatives, City officials, local residents, and other members of thepublic on the proposed Section 53094 exemption. (2AA 510.) At thatmeeting, the County Board decided to postpone action on Rocketship’sexemption request to allow more time for public and agency comments.(Ibid.) The County Board subsequently decided to postpone further itsdeliberations on the issue until after the City had completed itsenvironmental review of the proposed project. (Ibid.) On October 12,2012, the County Office of Education requested that the City investigateand submit a recommendation on the proposed school project. (3AA 617.)

Before receiving the County of Office Education’s request, the Cityhad been conducting its own public outreach and holding community

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meetings regarding the Rocketship school proposal throughout 2012. (3AA583.) After receiving the County Office of Education’s request, the Cityworked for months with Rocketship to fine-tune the proposal and tomitigate community concerns. (Ibid.) On January 8, 2013, the CityCouncil held a public hearing to consider the sale of City-owned propertyto Rocketship for its proposed. charter school use. (3AA 597-600.) At thehearing, several interested parties, including Respondents, presented publiccomments. (3AA 599.) After considering those comments, the CityCouncil approved the proposed project by (i) adopting a mitigated negativedeclaration (“MND”) pursuant to the California Environmental Quality Act(3AA 606-607 [Resolution No. 76529]), and (ii) declaring the subjectproperty to be surplus property, approving a purchase and sale agreement,and authorizing the City Manager to negotiate and execute a joint useagreement and other documents necessary for the project (3AA 609-6 15[Resolution No. 76530]). As a condition of the purchase and saleagreement, Rocketship was required to obtain an override resolutionacceptable to the City exempting the school from the City’s land userequirements pursuant to Government Code section 53094. (3AA 579.)

The next day, on January 9, 2013, the City Planning Commissionfavorably responded to the County Office of Education’s October 12, 2012request for a recommendation on the proposed siting of the school. (3AA617-620.) Specifically, the Planning Commission stated that it “favor[ed]acquisition of the subject property for a school site,” based on its findingsthat the project would bring “additional educational opportunities to thearea” and would have an “overall positive impact to the area;” and that the“proposed project would advance community planning goals and policiesfor the promotion of high-quality education and provision of neighborhoodfacilities.” (3AA 619-620.)

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On January 23, 2013, the County Board of Education voted 5 to 1(with one abstention) in favor of Resolution 2112-1, which approved,pursuant to Government Code section 53094, Rocketship’s request for anexemption from the City’s general plan and zoning ordinance, “so long asthe Property is used for charter school classroom purposes consistent withthe project description used in the MND.” (3AA 622-625.)B. Procedural History

On February 22, 2013, SJUSD filed a petition for writ of mandateand complaint for declaratory relief seeking to set aside the County Board’sresolution approving a zoning exemption and requesting a declaration thatthe County Board lacked authority under Section 53094 to override localzoning measures because it is not the governing board of a “school district”within the meaning of Section 53094. (1AA 1-10.) Later that month, onFebruary 27, 2013, Bymaster filed a separate petition for writ of mandaterequesting similar relief. (2AA 413-420.) Bymaster asserted, among otherthings, that the proposed charter school would directly impact the use andvalue of his adjacent property. (2AA 416.) In April 2013, the trial courtconsolidated the SJUSD and Bymaster cases. (Declaration of John R. Yehin Support of Respondent SJUSD’s Motion to Dismiss Appeal, Exh. 3.)

On March 7, 2014, the trial court issued a Statement of Decisionadopting Respondents’ position and ruling that county boards of educationare not boards of “school districts” for purposes of Government Codesection 53094. (5AA 1261-1270.) Based on that conclusion, the trial courtheld that the County Board did not have the power under Section 53094 tooverride the City’s zoning controls to permit Rocketship to construct theproposed school. (5AA 1267-1270.) On April 7, 2014, the trial courtentered a single judgment for SJUSD and Bymaster on their respectivepetitions and issued a Peremptory Writ of Mandate directing the CountyBoard to rescind its Resolution approving the exemption for Rocketship

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and/or to take official action denying Rocketship’s exemption request.(5AA 1272-1278.)

STATEMENT OF APPEALABILITY

The trial court entered its final judgment for Respondents on April 7,2014. (5AA 1272-1275.) Notice of entry of judgment was served on April16, 2014 (5AA 1279-1287), and Appellants filed a timely notice of appealon June 5, 2014. (5AA 1296-1300; Cal. Rules of Court, rule 8.104(a).)

STANDARD OF REVIEW

On appeal, the Court reviews de novo questions of law regarding theproper interpretation of a statute. (Taxpayers forAccountable Sch. BondSpending v. San Diego Unified Sch. Dist. (2013) 215 Cal.App.4th 1013,1057.)

LEGAL DISCUSSION

The foremost principle of statutory construction is to “ascertain theintent of the lawmakers so as to effectuate the purpose of the law.” (Peoplev. Pieters (1991) 52 Cal.3d 894, 898.) While the “plain meaning” rule is aguide to ascertaining legislative intent, it “does not prohibit a court fromdetermining whether the literal meaning of a statute comports with itspurpose or whether such a construction of one provision is consistent withother provisions of the statute.” (Lungren v. Deukmejian (1988) 45 CaL3d727, 735.) Indeed, to that end, the California Supreme Court has said:

The meaning of a statute may not be determinedfrom a single word or sentence; the words mustbe construed in context, and provisions relatingto the same subject matter must be harmonizedto the extent possible. Literal constructionshould not prevail if it is contrary to the

On December 2, 2014, this Court denied SJUSD’s motion todismiss the appeal, rejecting SJUSD’s contention that Appellants had onlyappealed with respect to the SJUSD matter, and not the Bymaster matter.

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legislative intent apparent in the statute. Theintent prevails over the letter, and the letter will,if possible, be so read as to conform to the spiritof the act.

(Ibid., citations omitted.)

Moreover, “[b]oth the legislative history of the statute and the widerhistorical circumstances of its enactment may be considered in ascertainingthe legislative intent.” (Dyna-Med, Inc. v. Fair Employment & HousingComm ‘n (1987) 43 Cal.3d 1379, 1387.) “Where uncertainty existsconsideration should be given to the consequences that will flow from aparticular interpretation.” (Ibid.)

In the end, courts must select the statutory construction thatcomports most closely with the apparent intent of the Legislature, with aview to promoting rather than defeating the general purpose of the statute,and avoid an interpretation that would lead to absurd consequences.6(Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.) Anda statute should be construed whenever possible so as to preserve itsconstitutionality. (Dyna-Med, Inc., supra, 43 Cal.3d at p. 1387.)

Applying these principles here, the County Board of Education is a“school district” within the meaning of Government Code section 53094.The trial court’s ruling to the contrary is inconsistent with the plainlanguage and intent of the statute, conflicts with longstandingadministrative construction, and would lead to absurd and unconstitutionalresults.

6 It is the duty of courts in construing statutes enacted for the benefitof institutions designed to promote education generally to indulge inreasonable liberality to the end that the evident purposes of such legislationmay become effective. (Pasadena Univ. v. LosAngeles County (1923) 190Cal. 786, 790-79 1; see also Educ. Code, § 2 [the Education Code’s“provisions and all proceedings under it are to be liberally construed, with aview to effect its objects and to promote justice”].)

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I. THE ZONING OVERRIDE AUTHORITY IN SECTION 53094OF THE GOVERNMENT CODE APPLIES TO COUNTYBOARDS OF EDUCATION.

A. The Historic or Common Usage of the Term “SchoolDistrict” Encompasses All Public Agencies OverseeingPublic Schools.

In concluding that county boards of education may not exercisezoning exemption authority pursuant to Section 53094, the trial courtdeclared that the “plain language” of Section 53094 applies only to “schooldistricts.” (5AA 1268-1269.) This supposition, however, begs thequestion: what is a “school district” for the purposes Section 53094?

The term “school district” is not defined in section 53094 orelsewhere in the Government Code. In determining the meaning of “schooldistrict,” the trial court thus should have sought to ascertain theLegislature’s intent by, first, examining common dictionary usages of theterm. (Rosenfield v. Superior Court (1983) 143 Cal.App.3d 198, 202 [inthe absence of a specific statutory definition of a term, courts must look todictionary definitions).) The trial court did not do that.

Common dictionary definitions of the term “school district” include:“a unit for administration of a public-school system often comprisingseveral towns within a state” (Merriam-Webster.com <http://www.merriam-webster.com> [as of March 25, 2015]); “an area within a U.S. state inwhich all the schools are managed by the same group of people”(Macmillandictionary.com <http://www.macmillandictionary.com/usIdictionary> [as of March 25, 2015]); and “a political subdivision of a state,created by the legislature and invested with local powers of selfgovernment, to build, maintain, fund, and support the public schools withinits territory. . .“ (Black’s Law Dictionary (10th ed. 2014) p. 1546). By anyof these definitions, a county board of education, operating through itscounty office of education, is a “school district.”

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This is clear from the organizational structure and functions ofcounty boards of education.7 Indeed, as the trial court itself recognized, thefunctions of county boards overlap with the functions of local schooldistricts. (5AA 1268.) Like local school districts, county boards ofeducation have broad authority to operate public schools, including theapproval and oversight of public charter schools. (Educ. Code, § 47605,subd. (j), 47605.5, 47605.6, 47607, subd. (c).) According to the trial court,however, unlike local school districts, county boards of education “do[J nothave the unique educational task of mass public education that a schooldistrict has.” (5AA 1268.) Yet, the trial court offered no explanation as tohow this supposed difference removes county boards of education from theambit of “school districts” within the meaning of Government Code section53094.

In any event, the trial court was wrong in positing that county boardsof education do not provide mass public education. In fact, county boardsof education, through their offices of education, operate public schoolsserving a diverse and growing segment of the student population.8 Forexample, county boards operate: (1) technical, agricultural, or natural

‘ Authorized by article IX, section 7 of the California Constitutionand by Education Code section 1000, county boards of education adoptrules governing the administration of the county superintendent of schools’office (Educ. Code, § 1042(a)), and oversee, with the county superintendent,the activities of the county office of education. (3AA 627.) Each countyboard has a defined boundary (coterminous with the county) and its boardmembers are elected by the general public. (Educ. Code, § 1000.)

8 Every county in California has a county office of education. (3AA520, 627-630.) Each county office, under the direction of the county boardof education and county superintendent of schools, provides a wide rangeof services, including countywide educational programs. (Ibid.; see also3AA 655-657.) Specifically, here, the Santa Clara County Office ofEducation “directly and indirectly provides instruction and services tostudents” throughout Santa Clara County. (2AA 510-511; 3AA 663.)

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resource conservation schools (Educ. Code, § 1790 — 1809); (2)emergency elementary schools (id., § 1920 — 1924); (3) communityschools (id., § 1980— 1986); (4) juvenile court schools (id., § 48645 —

48648); (5) child development programs and centers (id., § 8320 — 8331);(6) outdoor science education programs (id., § 8764 — 8765); (7) servicesto migrant children (id., § 54440 — 54445); (8) regional occupationprogram services (id., § 52300 — 52334.5); and (9) special educationservices (id., § 56000 et seq.). In addition, county boards of educationoversee the formation and proper functioning of charter schools. (Id., §47605, subd. (j), 47605.5, 47605.6; see also Wilson, supra, 75 Cal.App.4that pp. 1140-1142 [describing charter approval process and “continuingoversight and monitoring powers” of county boards of education;explaining that school districts and county boards of education share thesame chartering and oversight powers].)

While it is true that local school districts are primarily responsiblefor the delivery of kindergarten through 12th grade education, countyboards of education, through their county offices of education, havebecome the second greatest provider of kindergarten through 12th gradeeducational services to students in California. Likewise, while it is true thatcounty offices of education provide some “unique” or “specialized”educational programs, county offices also offer exactly the same types ofprograms provided by traditional school districts. (2AA 509-5 11[describing oversight of primary and secondary schools operating pursuantto countywide charters].) Indeed, the evidence presented belowdemonstrates that county offices of education provide traditional academicprograms through both charter and non-charter schools and the largest 13county offices of education provide services to almost 60,000 students.(3AA 534.) The Santa Clara County Office of Education itself has morethan 144 school sites serving almost 7,000 students. (3AA 672.) Those

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schools are subject to the same state regulations and requirements as localschool districts with respect to the educational services they provide. (2AA512.)

Moreover, of particular relevance here, county boards of educationare directly involved in the siting of public school facilities, and they areauthorized to utilize their power of eminent domain to acquire propertynecessary or convenient to carry out their mission. (Educ. Code, § 47605.6[providing county boards with oversight authority over siting ofcountywide charter schools]; see also id., § 1047 [granting boards power ofeminent domainj, § 1793 [authorizing boards to acquire property for theconstruction of suitable school buildings].) Also, county offices ofeducation have the authority thrOugh bonds and other financing means toraise funds to provide for their academic programs and facilities. (See, e.g.,Cal. Const., art. XIII A, § 1(b)(3).)

All told, given the expansive role that county boards and offices ofeducation play in providing educational services to students throughoutCalifornia, and given their vital role in siting public school facilities, thereis no principled basis for distinguishing, for the purposes of GovernmentCode section 53094, between public schools that are operated by countyboards of education and those that are operated by local school districts.9

Respondents suggested below (4AA 1015) that Today’s FreshStart, Inc. v. LosAngeles County Office ofEducation (2013) 57 Cal.4th197, highlighted the functional differences between local school districtsand county boards of education. That is not so. Today’s Fresh Startaddressed whether schools operated by the county office of education werein direct competition with a countywide charter school, and thus whetherthere could be a conflict or bias on the part of the county board of educationin revoking the school’s charter. (Id. at pp. 218-219.) Ultimately, theCourt concluded that there was no conflict, finding that “generalcountywide charters are designed by the Legislature not to compete withservices provided by county offices of education, but instead tocomplement them.” (Id. at p. 219.) If anything, the case actually highlights

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Finally, the trial court’s distinction between county boards ofeducation and local school districts is further undermined by its ruling that“junior college boards” are “school districts” within the meaning of Section53094. (5AA 1268.) Junior college boards, referred to in the EducationCode as community college districts, are separate legal entities from schooldistricts. (Educ. Code, § 80 [“Any school district’ and ‘all school districts’mean school districts of every kind or class, except a community collegedistrict.”]; § 70900 et seq. [statutory provisions governing junior collegedistricts].) The trial court offered no rationale, and there is none, for theinclusion of community college districts within the ambit of Section 53094and the exclusion of county school boards. If anything, county boards ofeducation resemble local school districts more than community collegedistricts do.

B. The Legislative History of Section 53094 and EducationCode Sections 35160 and 35160.2 Confirm that CountyBoards of Education Have Zoning Override Authority.

The textual meaning of the term “school districts” as encompassingcounty boards of education is supported by the legislative history ofGovernment Code section 53094, as well as the legislative history ofEducation Code sections 35160 and 35160.2, which, are pertinent herebecause they show the Legislature’s intent to provide school districts andcounty boards of education with the same level of flexibility in theiroperations. The trial court misapprehended the legislative history of

certain similarities between school districts and county boards of education.For example, as the Court noted, both entities oversee charter schools,which “compete with traditional public schools for students, and theyreceive funding based on the number of students they recruit and retain atthe expense of the traditional system.” (Id. at pp. 206-207.) The Court alsopointed out that the chartering authorities (i.e., school districts or countyboards of education) perform the same functions in overseeing their charterschools. (Ibid.)

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Government Code Section 53094 and simply ignored the legislative historyof Education Code Sections 35160 and 35160.2.

1. The Legislative History of Government CodeSection 53094.

In looking at the history of Government Code section 53094, thetrial court correctly observed that this provision reflected a legislativeresponse to two state court decisions in the late 1950s. (5AA 1263-1265.)The trial court drew the wrong lessons from that history, however.Contrary to the trial court’s view, the history shows a legislative intent thatSection 53094’s zoning override authority be conferred on all publicagencies operating public schools, not just local school districts.

The two court decisions that led to Section 53094 were Hall v. Cityof Taft (1956) 47 Cal.2d 177, and Town ofAtherton v. Superior Court(1958) 159 Cal.App.2d 417. In both cases, the courts addressed a perceivedconflict between local government action affecting public schools and statesovereignty principles, including a command in the California Constitutionthat “[tjhe Public School System,” including “all kindergarten schools,elementary schools, secondary schools, technical schools, and statecolleges,” and the “agencies authorized to maintain them” shall not beplaced “directly or indirectly. . . under the jurisdiction of any authorityother than one included within the Public School System.” (Cal. Const.,art. IX, § 6.)

Hall considered whether Taft School District was subject tomunicipal building regulations and thus required to obtain a building permitfrom, and pay applicable permit fees to, the City of Taft in connection withthe construction of a school building. The Supreme Court answered no. Itheld that the establishment and regulation of “public schools” is a matter ofstatewide rather than local or municipal concern and that therefore thecity’s building regulations were preempted by the state’s plenary power.

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(Supra, 47 Cal.2d. at pp. 179-181.) According to the Supreme Court, “[t]hepublic school system is of statewide supervision and concern,” and “thepower of the state Legislature over the public schools is plenary, subjectoniy to any constitutional restrictions.” (Id. at pp. 180-181, emphasisadded.) The Court further noted that “the education of the children of thestate is in a sense exclusively the function of the state which cannot bedelegated to any other agency.” (Id. at p. 181, quoting Piper v. Big PineSch. Dist. (1924) 193 Cal. 664, 669.)

Town ofAtherton involved a local zoning ordinance prohibiting theconstruction of new schools within the town’s boundaries. The Court ofAppeal followed the state preemption rationale in Hall and held that thetown could not prohibit the siting of a public school through local zoningcontrols, stating that “[i]f, as the Hall case holds, the construction andmaintenance of a school building is a sovereign activity of the state, it isobvious that the location and acquisition of a school site is necessarily andequally such an activity.” (Supra, 159 Cal.App.2d at p. 428.)

In the wake of Hall and Town ofAtherton, cities and counties voicedtheir concerns to the California Legislature that the decisions deprived themof control over, not just public schools, but all “local agencies of the State”(such as water districts, irrigation districts, housing authorities, etc.) andtheir ability to establish well-planned communities. (3AA 722 [“[TJhe newjudicially declared concept that governmental agencies which can lay claimto being ‘local agencies of the State’ are immune from local regulations isby far the larger problem created by the [Taft] decision”].) To addressthese concerns, the Legislature in 1959 enacted Government Code sections53090 through 53095. (City ofSanta Clara v. Santa Clara Unified Sch.Dist. (1971) 22 Cal.App.3d 152, 157 [noting that Sections 53090 through53095 were enacted in response to Hall and Town ofAtherton].) Inpertinent part, these provisions directed that local state agencies (termed

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“local agencies”) must comply with all applicable building and zoningordinances of the county or city in which they are situated.

There was one important exception, however: the Legislaturegranted school districts certain exemption rights, including the zoningoverride exemption codified in Government Code section 53094 that is atissue here. (Stats of 1959, ch. 2110.)

While the Legislature used the term “school district” in Section53094, there is nothing in the legislative history to suggest that theprovision’s exemption authority was intended to be limited to publicschools operated by agencies entitled “school districts,” to the exclusion ofother agencies operating public schools (e.g., county boards of educationand community college districts). Indeed, because the court decisions thatprompted passage of Section 53094 established state supremacy over localzoning for all public schools in the Public School System, the Legislature’suse of the term “school district” must embrace all “school districts and theother agencies authorized to maintain [public schools].” (Hall, supra, 47Cal.2d at p. 180, citing Cal. Const., art. IX, § 6; City ofSanta Cruz v. SantaCruz City Schools Bd. ofEducation (1989) 210 Cal.App.3d 1, 6 [“[R]atherthan grant absolute immunity from or give unqualified consent to localcontrol, the Legislature in Section 53094 struck a balance, though notequal, between State educational and local regulatory interests andcontrol.”].) Consistent with this understanding, the term “school district”as used in Section 53094 has been recognized as broadly applying tovarious agencies operating public schools, even if they are not officiallydesignated as “school districts.” (See, e.g., People ex rel. Cooper v.Rancho Santiago College (1990) 226 Cal.App.3d 1281, 1282-1286[implicitly recognizing authority of community college district to overridelocal zoning ordinance pursuant to Section 53094(b), by holding that

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community college did not have power to exempt “nonclassroom facilities”as provided in that section].)

Respondents argued below that the Legislature’s omission of aspecific reference in Section 53094 to county boards of education wasintentional. (1AA 25; 2AA 440; 4AA 1024-1025.) There is no evidence tosupport this contention.1° In fact, at the time of enactment, there was noreason for the Legislature to identify county boards of education or countyoffices of education because those entities were not authorized to operatepublic schools until 1977. (2AA 489; 4AA 1014.)

This does not mean that the zoning override authority of Section53094 must be confined to those entities that operated public schools in1959. It is a bedrock principle of statutory construction that as long as theLegislature’s intent was to broadly reach all types of entities that mightengage in an activity addressed by the law, then an entity that engages inthat activity will be covered even if it did not exercise any of the relevant

10 Citing an Attorney General opinion, SJUSD asserted below that“{w]here the Legislature has only granted the right to invoke a statutorypower to a school district, ‘[tjhe absence of express authorization forcounty boards. . . raises the negative implication that no such authority hasbeen conferred.” (4AA 1014, citing 85 Ops. Cal. Atty. Gen. 167 (2002).)SJUSD’s reliance on that opinion is misplaced. The opinion merelyanalyzed whether a county board of education is authorized to grantscholarships to county students. The statute at issue, which authorized thegoverning board of any “school district” to establish a scholarship fund,was part of a comprehensive statutory scheme authorizing school districtsto make interest-free loans and grants-in-aid to eligible persons. Becausethere was “[n]o other statute or statutory scheme authoriz[ing] the grantingof scholarship funds to the students of a county,” the Attorney General hadno difficulty concluding that only school districts are authorized to grantscholarships. (85 Ops. Cal. Atty. Gen. 167 at 3.) The Opinion has norelevance here, however, because the Education Code grants county boardsof education significant authority over public school operations and siting,and Government Code section 53094 was enacted precisely to address statesupremacy concerns related to the siting and construction of public schools.

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powers or even exist until after the law’s enactment. (City ofSaratoga v.Huff (1972) 24 Cal.App.3d 978, 1006-1007 [holding that communitycollege district was subject to constitutional debt limit for “school districts”even though it was not created until almost 50 years after adoption ofconstitution limit]; see also LosAngeles Unified Sch. Dist. v. Garcia (2013)58 Cal.4th 175, 189-193 [holding that school districts are required toprovide special education programs to eligible inmates even though statutedoes not mention the specific circumstance and the Legislature did not socontemplate, because construing the statute to cover the subject program is“consistent with the statute’s purpose”]; O’Grady v. Superior Court (2006)139 Cal.App.4th 1423, 1460-1466 [holding that internet publishers wereprotected by reporter’s shield law even though the Legislature presumablywas not prescient enough in 1974 to have consciously intended to includedigital magazines within the sweep of the term “periodical publication”;concluding that statute’s application “must ultimately depend on thepurpose of the statute”].) If the law were to the contrary, then the intent ofthe Legislature could be defeated through nothing more than the evolutionof governmental programs and terminology over time.1’

Respondents also argued below that the maxim of statutoryconstruction, expressio unius est exclusio alterius (the expression of onething implies the exclusion of the other), compels the conclusion that theLegislature intended to grant zoning override power only to local schooldistricts. (1AA 25.) This maxim, however, applies only where a statute

If the Court were to find that county boards of education were notintended to be covered by Government Code section 53094 — simplybecause they did not operate public schools in 1959 — then the Court wouldlikewise need to conclude that the Legislature did not consent to placingcounty boards of education under local control pursuant to GovernmentCode section 53090 et seq. Consequently, pursuant to Hall and Atherton,county boards of education would be entirely exempt from local zoningcontrols.

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identifies a series of “two or more terms or things” that should beunderstood to go hand in hand. (Barnhart v. Peabody Coal Co. (2003) 537U.S. 149, 168.) There is no series or list of related terms in Section 53094.Additionally, the maxim does not apply where, as here, (i) its operationwould contradict a discernable and contrary legislative intent; (ii) no reasonexists why persons and things other than those enumerated should not beincluded; or (iii) (as we show below), such exclusion would result in absurdconsequences that the Legislature could not have intended. (In re J. W.(2002) 29 Cal.4th 200, 209; In re Sabrina H. (2007) 149 Cal.App.4th 1403,1411.)

Nor does City ofSanta Clara v. Santa Clara Unified Sch. Dist.support Respondents’ cause. Respondents cited that case below for theproposition that “the Legislature deliberately accorded different treatmentto school districts than to other local agencies because it was well awarethat school construction was subject to almost complete control by theState.” (1AA 22, quoting City ofSanta Clara, supra, 22 Cal.App.3d at p.158, fn. 3.) But the distinction drawn by the Legislature was not betweendifferent types of agencies operating public schools. Rather, it wasbetween agencies operating public schools and agencies that did not. Infact, the City ofSanta Clara Court explained that this distinction flowedfrom state sovereignty concerns related to the siting and construction ofschools — concerns that are shared by local school districts and countyboards of education. (Id. at pp. 156-158.)

2. The Legislative History of Education Code Sections35160 and 35160.2.

Education Code section 35160 states:On or after January 1, 1976, the governingboard of any school district may initiate andcarry on any program, activity, or mayotherwise act in any manner which is not in

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conflict with or inconsistent with, or preemptedby, any law and which is not in conflict with thepurposes for which school districts areestablished.

(Educ. Code, § 35160.)Before the effective date of section 35160, local school districts

possessed little, if any, power to act without express legislative oradministrative authorization. (Hartzell v. Connell (1984) 35 Cal.3d 899,915.) Section 35160 converted the Education Code from a “restrictivecode” — one where all actions must have a genesis in a particular statute —

into a “permissive code” — one where all actions may be taken to effectuatethe agency’s goals unless it conflicts with an express provision of law.(Ibid.) The goal of this provision was to provide school districts withoperational flexibility. (See Educ. Code, § 35160.1.)

This same operation flexibility has been granted to county boards ofeducation pursuant to Education Code Section 35160.2, which states that,for the purposes of section 35160, “school district’ shall include countysuperintendents of schools and county boards of education.” This is echoedin Section 35 160.1(b), which says unequivocally:

In enacting Section 35160, it is the intent of theLegislature to give school districts, countyboards of education, and county superintendentsof schools broad authority to carry on activitiesand programs, including the expenditure offunds for programs and activities which, in thedetermination of the governing board of theschool district, the county board of education,or the county superintendent of schools arenecessary or desirable in meeting their needsand are not inconsistent with the purposes forwhich the funds were appropriated.

(Educ. Code, § 35160.1, subd. (b).)The upshot of these provisions is that absent a conflict with the law,

the permissive code grants county boards of education the power to carry20

on activities that are necessary and desirable in meeting their needs.(Governing Bd. ofRipon Unified Sch. Dist. v. Commission on ProfessionalConduct (2009) 177 Cal.App.4th 1379, 1385-1386.) Thus, because thesiting of public school facilities is necessary to fulfill their purpose, countyboards of education have the power to establish school sites unless theexercise of this power would conflict with the law. And the Legislature hasinstructed that this power be “liberally construed” to effect this objective.(Educ. Code, § 35160.1, subd. (b).)

Perhaps most tellingly, however, the permissive code offers criticalinsight into how the Legislature construes the term “school district” in lightof the evolving authority of county boards of education and countysuperintendents of schools to operate public schools. When the permissivecode was enacted in 1974, neither county boards of education nor countysuperintendents of schools had authority to operate public schools.In the ensuing decades, however, these entities took on an ever increasingrole in the operation of public schools. In 1986, the Legislature addedSection 35160.2 to the permissive code to clarify the equal standing ofcounty offices and to confirm that the term “school district” includescounty boards of education and county superintendents of schools.12 (Statsof 1986, ch. 1124.) Critically, the Legislature stated explicitly that theamendment “shall be interpreted to be declaratory of existing law.” (Ibid.)Thus, although the permissive code had not explicitly referred to countyboards of education and county superintendents of schools before 1986, theLegislature recognized that these entities were already covered by existing

12 The significance of the amendment was to confirm the “equalstanding” of county offices. (Appellants’ Motion for Judicial Notice, Exh.1 [Senate Committee on Education’s staff analysis of AB 3263].) TheLegislature observed that there had been “instances where county officeswere inadvertently excluded from a program because construction of aCode section did not explicitly include them.” (Ibid.)

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law — i.e., that they already possessed the same powers as local schooldistricts. In sum, the legislative intent of the permissive code sheds light onthe legislative intent of Government Code section 53094. The trial courtoverlooked this important barometer of the meaning of section 53094.

C. Pursuant to the Longstanding AdministrativeConstruction of Section 53094, County Boards ofEducation Have Exercised Zoning Exemption Authorityfor Decades.

A longstanding course of administrative construction of an agency’sown powers should be accorded great respect by the courts, and should beupheld unless clearly erroneous. (County ofLos Angeles v. Superior Court(1941) 17 Cal.2d 707, 712; Kerr’s Catering Serv. v. Department ofIndus.Relations (1962) 57 Cal.2d 319, 325.) “[Clourts must give great weightand respect to an administrative agency’s interpretation of the statutegoverning its powers and responsibilities. Consistent administrativeconstruction of a statute. . . is accorded great weight.” (Ste. Marie v.Riverside County Regional Park & Open Space Dist. (2009) 46 Cal.4th282, 292, internal quotations and citation omitted.)

This principle applies in full force here because there has been aconsistent and longstanding use of the Section 53094 zoning exemption bycounty boards of education and by community college districts. Forexample, the following county boards of education have exercisedexemptions under Section 53094 for purposes of siting public schoolfacilities: (1) Sacramento County Board of Education (charter schoolexemption, February 2013); (2) Sonoma County Board of Education(exemption for special education classrooms, September 2000); (3) SonomaCounty Board of Education (exemption for Cal-SAFE instructionalprogram, April 2001); (4) Sonoma County Board of Education (exemptionfor alternative education instructional program, June 2001); (5) SonomaCounty Board of Education (community school exemption, December

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2001); (6) San Mateo County Board of Education (exemption for outdooreducation center, 1976); (7) Tulare County Board of Education (communityschool exemption, April 2001); (8) San Bernardino County Board ofEducation (exemption for high school to provide special education,September 2006); (9) San Bernardino County Board of Education(exemption for early education center, March 2007); and (10) San DiegoCounty Board of Education (community school exemption, August 2003).(3AA 530-533; 3AA 726—4AA 822.)

The authority of a county board of education to exercise a zoningexemption under Government Code section 53094 was also recognized bythe Fiscal Crisis and Management Assistance Team (“FCMAT”), a stateagency charged with providing fiscal and management reviews for K-12school districts, county offices of education, community colleges, andcharter schools (Educ. Code, § 42127.8). (4AA 862.) According toFCMAT, “County boards, by a two-thirds vote, may render city and countyordinances inapplicable to certain school sites.”3 (Ibid.)

Furthermore, California community college districts have beenoperating under and exercising zoning exemptions under Government Codesection 53094 for many years. For example, the following communitycollege districts have exercised zoning exemptions under Section 53094:(1) Los Angeles Community College District (December 2004); (2) NorthOrange County Community College District (January 2004); (3) PalomarCommunity College District (March 2009); (4) San Diego CommunityCollege District (September 2007); (5) Santa Monica Community CollegeDistrict (August 2003); (6) Santa Monica Community College District

13 A similar conclusion was also reached in a legal opinion by theSchool and College Legal Services, dated August 19, 1998, in which theService’s general counsel concluded that the Mann County Board ofEducation was the appropriate body to exercise a zoning exemption underGovernment Code section 53094. (2AA 466; 4AA 840-843.)

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(September 2003); (7) Santa Monica Community College District(February 2007); (8) San Francisco Community College District (January1996); (9) West Valley Community College District (October 1996); and(10) Yosemite Community College District (March 2009). (3AA 534-538;4AA 878-989.)

Finally, as noted previously, California courts have recognized theauthority of community college districts to override local zoning controlspursuant to Government Code section 53094, even though such districts arenot specifically identified in Section 53094. (See, e.g., People ex rel.Cooper, supra, 226 Cal.App.3d at pp. 1282-1286.)

Appellants presented voluminous evidence below demonstrating thehistoric use of the Government Code section 53094 zoning exemption byentities other than local school districts. But the trial court never addressedthis evidence or explained why the established administrative constructionwas not entitled to great weight. (5AA 1261-1270.) Its omissions in thisregard were legal error.

D. The Trial Court’s Interpretation of Government CodeSection 53094 Would Violate the California Constitutionand Lead to Absurd and Harmful Consequences.

As stated by the California Supreme Court in Hall, “[njo school orcollege or any other part of the Public School System shall be, directly orindirectly,. . . placed under the jurisdiction of any authority other than oneincluded in the Public School System.” (Hall, supra, 47 Cal.2d at p. 180.)Here, the trial court erred by failing to construe Section 53094 in a mannerthat avoids a constitutional conflict. (Dyna-Med, Inc., supra, 43 Cal.3d atpp. 1387, 1392 [statutes should be “construed whenever possible so as topreserve [theirj constitutionality” and should be “given a reasonable andcommonsense interpretation consistent with the apparent legislativepurpose and intent and which, when applied, will result in wise policy

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rather than mischief or absurdity”J, internal quotations and citationomitted.)

The trial court’s interpretation of Section 53094 fails to address thesupremacy arguments in Hall and Atherton and impermissibly places publicschools operated and/or overseen by county boards of education (includingRocketship’s proposed charter school) under municipal regulatory controlin violation of the California Constitution. Moreover, the trial court’sinterpretation would lead to precisely the same constitutional conflict thatwas addressed in Atherton. If county boards of education are unable toexercise zoning exemptions, then local governments could effectively zone-out any public schools that are authorized by county boards (irrespective ofthe need for such schools). Indeed, as inAtherton, a local governmentcould for a variety of reasons simply prohibit schools in any zone. Basedon the trial court’s interpretation of Section 53094, only local schooldistricts would be able to locate their public schools within thatjurisdiction.14 This would squarely violate the constitutional prohibitionagainst placing the “public school system” under the jurisdiction ofauthorities outside such system. Moreover, the State has not consented to,nor could it consent to, the abdication of its control over the public schoolsystem.

Furthermore, the trial court’s interpretation of Section 53094 wouldlead to an absurd result: local school districts would be given a competitiveadvantage over charter schools authorized by county boards of education.This would conflict with several legislatively-declared policies. Inparticular, the Legislature empowered county boards of education to assist

14 Only “school districts” may avoid the application of local zoningordinances without the obligation of exercising a zoning exemption where acity or county fails “to make provision for the location of public schools.”(Gov. Code, § 53094, subd. (a).)

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the State in fulfilling the Legislative goals of the Charter Schools Act of1992. (Educ. Code, § 47600 et seq.) Those goals include “improv[ing]pupil learning,” “increas[ingj learning opportunities for all pupils,”“creat[ingj new professional opportunities for teachers,” and “provid[ingjvigorous competition within the public school system to stimulate continualimprovements in all public schools.” (Educ. Code, § 47601.)

To achieve these goals, the Legislature granted county boards ofeducation the power to approve charter schools in several situations,including on a direct application to serve students “for whom the countyoffice of education would otherwise be responsible for providing directeducation and related services” (Educ. Code, § 47605.5) and on a directapplication to create a countywide charter school that operates at multiplesites throughout the county and that “provides instructional services that arenot generally provided by a county office of education” (Educ. Code,

§ 47605.6).The latter type of charter schools provides direct competition for

public school students in the districts where these charter schools arelocated. (Today’s Fresh Start, supra, 57 Cal.4th at pp. 206-207 [“[C]harterschools compete with traditional public schools for students, and theyreceive funding based on the number of students they recruit and retain atthe expense of the traditional system.”], internal quotations and citationomitted.) This is exactly what has transpired here. Rocketship operates anumber of highly successful public charter schools that compete directlywith the public schools operated by SJUSD. While SJUSD is opposed tothe placement of Rocketship Eight Charter School within its districtboundaries, the competition created by this charter school is precisely whatthe Legislature intended in granting county boards of education the right toapprove charter schools.

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The trial court posited that, if Rocketship Eight Charter School hadso desired, it could have requested a Section 53094 override from SJUSDand that a favorable override decision would have been “beyond questionbecause the law clearly vests school districts with that power.” (5AA1267.) The trial court was mistaken because SJUSD was not the charteringauthority and thus it had no power to render an override decision forRocketship Eight Charter School. (Gov. Code § 53094 [authorizinggoverning board of school district to render local zoning ordinanceinapplicable “to a proposed use of property by the school district”].)Moreover, the trial court’s suggestion ignores the fact that SJUSD is acompetitor with no interest in assisting Rocketship. Accordingly,Rocketship sought and received a zoning override from its charteringauthority — the County Board of Education — based on the County Board’sexpress authority and equal standing to render zoning overrides.

If this Court were to adopt the trial court’s interpretation ofGovernment Code section 53094, then in those cases where a school districtand a city are aligned in opposition to charter schools, the countyauthorized charters will be unable to secure school facilities for their charterschools, thereby defeating the intent of the Legislature to “provide vigorouscompetition within the public school system.” (Educ. Code, § 47601.) Thetrial court’s interpretation leads to the absurd result of creating an unevenplaying field between competitors and granting the party that hashistorically held near monopolistic control over public education asubstantial leg up over its competitors. This is a result the Legislatureplainly did not intend.

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II. CONCLUSION

For the foregoing reasons, this Court should reverse the trial court’sjudgment, order the trial court to vacate its peremptory writ of mandate, anddirect the trial court to enter judgment in favor of Appellants.

Respectfully submitted,Dated: March 30, 2015 AKIN GUMP STRAUSS HAUER &

FELD LLP

By___________Andrew Oelz

Attorneys for Santa Clara CountyOffice of Education; Board of Trusteesof the Santa Clara County Office ofEducation; Rocketship Education; andRocketship Eight Charter School

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CERTIFICATE OF COMPLIANCE

[Cal. Rules of Court, Rule 8.204(c)]This brief consists of 8,209 words as counted by the Microsoft Word

version 2010 word processing program used to generate the brief.

Dated: March 30, 2015 AKIN GUMP STRAUSS HAUER &FELD LLP

By___________Andrew Oelz

Attorneys for Santa Clara CountyOffice of Education; Board of Trusteesof the Santa Clara County Office ofEducation; Rocketship Education; andRocketship Eight Charter School

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PROOF OF SERVICE

John R. YehDonald A. VelezBrian M. AffruntiBurke, Williams & Sorenson, LLP1503 Grant Road, Suite 200Mountain View, CA 94040-3270

[Attorneys for Respondent SANJOSE UNIFIED SCHOOLDISTRICT]

Hon. Franklin E. Bondonno, Dept. 7Santa Clara County Superior Court191 North First StreetSan Jose, CA 95113

Christopher E. SchumbThe Law Offices of Christopher E. Schumb10 Almaden Blvd., Suite 1250SanJose,CA 95113

[Attorneys for Respondent BRETTBYMASTER]

Supreme Court of California350 McAllister StreetSan Francisco, CA 94102-4797(Via electronic submission)

BY OVERNIGHT DELIVERY I enclosed the documents in anenvelope or package provided by an overnight delivery carrier andaddressed to the respective addresses of the parties stated above. I placedthe envelope or package for collection and overnight delivery at an office ora regularly utilized drop box of the overnight delivery carrier.

(STATE) I declare under penalty of perjury under the laws of the Stateof California that the foregoing is true and correct.

Executed on March 30, 2015, at Los

Grayce LeePrint Name of Person Executing Proof]

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action; my businessaddress is: 2029 Century Park East, Suite 2400, Los Angeles, CA 90067.On March 30, 2015, I served the foregoing document(s) described as:APPELLANTS’ OPENING BRIEF on the interested party(ies) below,using the following means:

California.