By William W. Abbott
The Santa Barbara COG is the local transportation authority for Santa Barbara County. As authorized by statute, the COG approved Measure A, which consisted of a sales tax measure for voter approval for transportation improvements and an investment plan, which served as the statutory Expenditure Plan. The COG then approved a resolution calling for the Board of Supervisors to put Measure A on the ballot. Petitioner challenged the COG approval on the basis that no CEQA review had been completed. The trial court ruled in favor of the COG, concluding that Measure A meets the criteria for an exemption from CEQA as the funding mechanism did not commit the COG to specific projects, notwithstanding the Expenditure Plan. Three months after COG approval of Measure A, but before the election, the COG certified an EIR for the 2008 Regional Transportation Plan.
On appeal, the appellate court first addressed mootness, saying the legal issue was not moot. To the extent that the COG approval of Measure was not exempt, the after-the-fact certification of the EIR would not cure the CEQA defect if one existed.
As to the merits, the appellate court recognized the California Supreme Court’s holding in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 supporting application of CEQA review prior to formal commitment to a project. Notwithstanding Save Tara, the appellate court concluded that in approving Measure A, the COG did not significantly further the Expenditure Plan projects in a way which “forecloses alternatives or mitigation measures”. Additionally, the Expenditure Plan included a provision allowing amendment (including project deletion) by the participating cities and counties, thus signaling to the appellate court, another argument against finding an inappropriate level of commitment. Other agencies looking at voter approved tax measures which are coupled with a wish list of projects would do well to review the tax measure/expenditure plan provisions viewed favorably by the appellate court. Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Association of Governments (2009) Cal.App. LEXIS 1807.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.