By Cori Badgley

The preliminary question in any inquiry under the California Environmental Quality Act is: does the action being approved by the agency constitute a project? While CEQA’s scope touches a significant array of actions, sometimes the answer to the question is “No.” In Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Association of Governments (2009) 179 Cal.App.4th 113, the Court of Appeal, Second Appellate District was faced with this preliminary question in relation to a measure imposing a retail sales and use tax and establishing a Transportation Investment Plan. The court held that the measure did not constitute a project, and therefore, the agency did not have to engage in environmental review before approving the measure.

The Santa Barbara County Association of Governments (“SBCAG”) approved Measure A entitled “Santa Barbara County Road Repair, Traffic Relief, and Transportation Measure” in 2008. Measure A had two components: an ordinance that imposed a retail sales and use tax to fund transportation projects within the county, and a Transportation Investment Plan required by Section 180206 of the Public Utilities Code, which showed how the revenues obtained through the tax would be expended. After approval, Petitioner brought this case on the grounds that SBCAG approved Measure A without complying with CEQA.

The trial court determined that Measure A fell within the funding mechanism exclusion of the CEQA Guidelines because it “does not constitute a binding commitment to construct the projects set forth in the investment plan.” On appeal, the appellate court agreed with the trial court.

According to the appellate court, Measure A did not make any commitment to any specific project through the Transportation Investment Plan. The court began by asserting that Measure A’s language requiring subsequent environmental review for any project included in the Transportation Investment Plan was not determinative pursuant to Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116. Instead of relying on that language, the court evaluated whether the agency took action that significantly furthered a project “in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.” (Id. at 138.)

The court found that the Transportation Investment Plan did not provide details or specifications for the transportation projects. This lack of “details and specifications allow flexibility to meet mitigation measures.” Additionally, SBCAG retained the power under Measure A to amend the Transportation Investment Plan, which included the power to delete any projects. The court also focused on the fact that implementation of the transportation projects was dependent on substantial funds from other sources that were not assured. In light of these facts, the court concluded that Measure A did not constitute a “project” under CEQA.

This case reminds us that it is not strictly the language of the agreement or ordinance that matters, but the effect of it. As stated by the court, in order to determine if an agency’s action constitutes a project, you must ask whether the agency significantly furthered the project “in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review.” Finding the answer in this case was no, the court upheld SBCAG’s approval of Measure A.

Cori M. Badgley is an associate 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.