An agreement between the County of San Diego and the state Department of Corrections to site a state prison reentry facility does not require the county to conduct environmental review prior to entering into the agreement because it did not constitute a commitment to a definite course of action, the Fourth District Court of Appeal has ruled. In the agreement, the county identified potential locations for the reentry facility in exchange for preference in the award of state financing for county jails.

San Diego County entered into the agreement with the California Department of Corrections and Rehabilitation in September 2008. Under the agreement, 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 state's Richard J. Donovan Correctional Facility in San Diego. 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. 

Before either location was chosen, the City of Santee sued San Diego County, arguing the agreement constituted a project for the purposes of the California Environmental Quality Act (CEQA) because it committed the county to a particular site for the reentry facility, and committed the county to expanding the Los Colinas Detention Facility, a county jail for women that is located within Santee's city limits. The county demurred. The San Diego County Superior Court sustained the demurrer, and the appellate court upheld the lower court's ruling.

Writing for the unanimous three-judge appellate panel, Justice Patricia Benke explained that CEQA requires an environmental impact report (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 a decision by a public agency that commits the agency to a definite course of action in regard to the project.

Citing extensively to the state Supreme Court's decision in Save Tara v. City of West Hollywood, (2008) 45 Cal.4th 116 (See CP&DR Legal Digest, December 2008), Benke discussed the "balancing of competing factors" involved in determining when in the process 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 CEQA review of that public project'" before conducting CEQA review, Benke wrote, citing Save Tara.

An agency, however, is not deemed to have approved a project within the meaning of Public Resources Code, § 21100 and § 21151 unless the proposal before the agency is well enough defined to provide meaningful information for environmental assessment. In Save Tara, the state Supreme Court found that the development agreement at issue constituted a project because (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.

The Fourth District compared Save Tara with Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Assn., (2009) 179 Cal.App.4th 113 (See CP&DR Legal Digest, November 2009). In the latter case, the court 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.

The Fourth District considered both the face of the agreement between San Diego County and the Department of Corrections for siting a reentry facility as well as the surrounding circumstances before determining the agreement did not represent a commitment that triggered CEQA review. 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, Benke wrote that because the face of the agreement does not identify a site for the reentry facility and has no unconditional or certain impact on the LCDF expansion, the agreement "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."

Looking at the circumstances surrounding the siting agreement, the court considered the fact that the Department of Corrections had identified water and infrastructure improvements that would be necessary for the Otay Mesa site, had determined the cost of the site, and had prepared a grading plan and vicinity map for the project. The court found these actions were only preliminary, exploratory steps for which environmental review cannot be required.

Because nothing in the record "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," Benke wrote. The court further denied the City of Santee's request to amend its lawsuit to allege that, if the Department of Corrections chooses the Otay Mesa site, the state will proceed with the project notwithstanding any environmental review. Such "double-barreled speculation" does not require environmental review, the court concluded.

The Case:

City of Santee v. County of San Diego, No. D055310, 2010 DJDAR 10129. Filed June 7, 2010. Certified for publication June 29, 2010. 

The Lawyers:

For City of Santee: Michelle Ouellette, Best, Best & Krieger, (951) 686-1450.

For San Diego County: C. Ellen Pilsecker, deputy county counsel, (619) 531-6229.

For California Department of Corrections and Rehabilitation: David R. E. Aladjem, Downey Brand, (916) 444-1000.