By Leslie Z. Walker
In City of Santee v. County of San Diego (June 7, 2010, D055310) __Cal.App.4th__ the Fourth District Court of Appeal held that an agreement between the County of San Diego and the Department of Corrections under which the County identified potential locations for a state prison reentry facility in exchange for preference in the awards of state financing of county jail facilities did not constitute a commitment to a definite course of action. As such, Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 did not require the County to conduct environmental review prior to entering into the agreement.
The County of San Diego entered into an agreement with the State of California Department of Corrections and Rehabilitation (“Department of Corrections”) under which the County identified two potential sites for placement of a reentry facility for state prisoners: county-owned land in Otay Mesa and state-owned land at the Richard J. Donovan Correctional Facility. Under the agreement, if the Department of Corrections were to select one of the sites, the County would be given preferential access to $100 million in assistance to finance the construction of County jail facilities. Petitioner, the City of Santee alleged the agreement constituted a project for the purposes of CEQA because it committed the County to a particular site for the reentry facility, and committed the County to expand the Los Colinas Detention Facility (“LCDF”) located within Santee’s city limits. The County demurred; the trial court sustained the demurrer; and the appellate court upheld the lower court’s decision.
Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116
The Court explained that CEQA requires an EIR when a public agency proposes to approve or to carry out a project that may have a significant effect on the environment. 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. Citing extensively to Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (“Save Tara,” see For CEQA, Project Commitment is Still A Question of Fact), the court discussed the “balancing of competing factors,” involved in determining when an EIR or negative declaration should be prepared. An agency must “not take any action that significantly furthers a project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of a CEQA review of that public project, before conducting a CEQA review.” (Id. at 138.) An agency however is not deemed to have approved a project within the meaning of Public Resources Code section 21100 and 21151, unless the proposal before it is well enough defined to provide meaningful information for environmental assessment. In Save Tara, the court found that based on the following factors, the development agreement at issue constituted a project: 1) the city had announced that it was determined to proceed with the development at issue, 2) the city had acted in accordance with that determination, 3) the city had substantially contributed to the project, and 4) the city was willing to bind itself, by a draft agreement, to convey the property.
Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Association. (2009) 179 Cal.App.4th 113
The court in City of Santee v. County of San Diego (June 7, 2010, D055310) ___ Cal.App.4th ___ compared Save Tara to Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Association (2009) 179 Cal.App.4th 113 (“Sustainable Transportation Advocates,” See Measure Including Transportation Investment Plan Held Not to Be a Project Under CEQA) where the court, applying the Save Tara factors, determined that the adoption of a transportation financing plan did not constitute a commitment to any of the transportation projects listed in the plan. The Sustainable Transportation Advocates court found the financing plan was not a commitment, because the construction of the projects was dependent on obtaining further financing from other agencies, the projects themselves were only described in general terms, the list itself was subject to later amendment, and the projects were subject to CEQA review prior to construction.
In City of Santee v. County of San Diego (June 7, 2010, D055310) ____Cal.App.4th____, the court considered both the face of the agreement between the County and the Department of Corrections for the siting of the reentry facility (“Siting Agreement”) and the surrounding circumstances and determined the agreement did not represent a commitment. On its face, the Siting Agreement did not select a particular location for the reentry facility, nor did it make any reference to the LCDF. Citing Save Tara, the court found that because the face of the agreement did not identify a site for the reentry facility and has no unconditional or certain impact on the LCDF expansion, “it does not describe any project which would be subject to any meaningful CEQA analysis. Rather, the face of the agreement places it squarely in the realm of preliminary agreements needed to explore and formulate project for which CEQA review would be entirely premature.” (Slip Opn. Page 14, citing Save Tara, supra, 45 Cal.4th at p. 139.) Looking at the circumstances surrounding the Siting Agreement, the court considered a number of factors in determining if the agreement constituted a commitment. The factors included: 1) the Department of Corrections identification of water and infrastructure improvements that would be necessary for the Otay Mesa Site; 2) the determination of the cost of the site; and 3) the preparation of a grading plan and vicinity map for the project. The court found these actions were only preliminary, exploratory steps for which environmental review could not be required.
The court held that because nothing in the record before the court “suggests the signing agreement has from a practical perspective foreclosed consideration of alternatives to any project or mitigation measures for those projects, the trial court properly sustained the county’s demurrer.” (Slip Opn. Page 15.) The court further denied the City of Santee’s request for leave to amend to allege that if the Department of Corrections chooses the Otay Mesa site, it will proceed with the site notwithstanding any environmental review, on the grounds that such “double-barreled speculation” does not require environmental review.
The key distinction between City of Santee v. County of San Diego and the supreme court case Save Tara is that the underlying agreement in Save Tara which constituted a commitment for CEQA purposes. The question in that case was whether the insertion of a CEQA contingency clause transformed what would otherwise be a commitment, into something less than a commitment for CEQA purposes. In the City of Santee v. County of San Diego, the underlying agreement itself was only preliminary and thus did not rise to the level of commitment in the first instance.
Leslie Z. Walker 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.