All About “Commitment”: CEQA Review is Not Triggered By Orange County’s AB 900 Application For State Funding To Expand Existing Jail Facility, Which Was Not A Project Approval

by Miller Starr Regalia

In a decision recently ordered published, the Fourth District Court of Appeal added to the growing progeny of Save Tara, and affirmed the trial court’s judgment denying the City of Irvine’s writ petition seeking to compel Orange County to prepare an EIR for its submittal of an application for state funding to expand a jail facility. City of Irvine v. County of Orange (4th Dist., Div. 3, 2013) _____ Cal.App.4th __________, 2013 WL 6145644. County’s funding application under the State’s AB 900 process did not commit it to a definite course of action regarding the jail expansion, however, and was merely a preliminary funding step; it was therefore not the “approval” of a project requiring CEQA review.

The County has operated the Musick Jail Facility on 100 acres of land adjacent to the City for over 40 years. After several County attempts to expand the facility failed due to lack of funding, the Legislature passed AB 900 in 2007. AB 900 provided $1.2 billion in phased state funding for local jail construction. In 2008, County applied for and received conditional approval of a $100 million funding request, but declined the funds due to state-imposed conditions it didn’t wish to accept. In 2011, following California’s corrections realignment and amendment of AB 900’s Phase II funding to accommodate the resulting need for additional local jail space, the conditions under which state funding was available became more favorable, and County submitted another “Request for Application” to CDCR for $100 million to expand the Musick Facility. In its resolution approving the request, County’s Board provided various assurances required by the state and resolved to comply with CEQA before actually accepting any state funds. Nonetheless, the City thereafter sued the County, seeking to compel it to vacate the resolution and enjoin it from proceeding with the AB 900 Phase II funding process until it completed CEQA compliance.

In affirming the trial court’s judgment denying the writ, the Court of Appeal noted as a threshold matter that the claimed error – improper timing of CEQA compliance – was one of procedure subject to de novo review. The issue was whether the County should have prepared and certified CEQA documentation before approving its Phase II funding application. Timing of an environmental study can present “a delicate problem” involving a balance of competing factors – i.e., it should be early enough to allow environmental review to shape the project, yet late enough to provide meaningful project information to review. CEQA review must occur prior to project approval, and the governing CEQA rule is defines project “approval” as “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.” (Citing 14 Cal. Code Regs, § 15352(a).)

Applying this rule and the test announced by the Supreme Court in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, the Court sought to “examine[ ]the totality of the circumstances and the practical effect of the public agency’s action on its ability and willingness to modify or reject the proposed project.” According to the Court, “[t]he controlling standard focuses on the public agency’s level of commitment for the project, not whether a binding agreement has been reached,… The critical question is whether the totality of the circumstances surrounding the public agency’s action has effectively committed the agency to the project even though it has not provided all approvals or entitlements necessary to proceed.” The Court “distinguish[ed] between advocating or proposing a project and committing to it.” The relevant Guidelines standard prohibits the public agency from taking “action which gives impetus to a planned or foreseeable [public] project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.” (Citing 14 Cal. Code Regs. § 15004(b)(2)(B), emph. in opn.)

Applying these principles, the Court “conclude[d] the County’s Phase II Application did not effectively preclude it from considering any alternatives or mitigation measures that CEQA would otherwise require the County to consider and therefore [it did not approve a project in violation of CEQA]….” The “surrounding circumstances” included the state AB 900 process for applying for and obtaining state funding for jail construction. This process made clear that approval of County’s application would be “conditional” only, and merely an expression that County is qualified to move forward in the process. The state process designates County as the lead agency for CEQA review, does not limit County’s discretion to impose mitigation measures or project alternatives, and does not require County to even initiate CEQA review until after state approval of its application and grant of a “conditional” award of funding. Accordingly, County’s “Phase II Application committed the County to nothing” – i.e., neither to proceed with the application process nor to construct the Musick Facility expansion – but merely allowed it, if its application were approved, to take the next step in the process. Moreover, the “high level of [project] detail the County provided regarding its current Musick Facility expansion plan in the Phase II Application” – thus providing “meaningful information for environmental assessment” – did not change the result. As the Court summed it up: “The amount of detail or the advanced stage of the project’s design… covers only part of the analysis for determining whether an agency’s action constitutes an approval under CEQA. An approval under CEQA requires both a definite course of action and a commitment to that definite course of action. [Citations.] As explained above, the commitment element is lacking here.”

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Miller Starr Regalia

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