Fourth District reiterates that Preliminary Agreements that Do Not Foreclose Later Consideration of Mitigation Measures or Alternatives are Not Project’s Subject to CEQA

In City of Santee v. County of San Diego (2010) 186 Cal.App.4th 55, the Fourth District Court of Appeal has ruled that, in approving a “siting agreement” for a reentry facility, San Diego County and the California Department of Corrections and Rehabilitation had not “approved” a “project” under CEQA.

The County and Corrections entered into the “siting agreement” in September 2008. The County agreed to identify up to three potential sites in the County to locate a reentry facility, where state prisoners would receive assistance as they transition back into society. The agreement included an exhibit showing two potential sites: one at a County jail in the City of Santee, and another on State-owned land at the existing Donovan prison in Otay Mesa. Under the agreement, if Corrections selects one of the sites identified by the County, the State would provide the County with preferential access to $100 million in financial assistance to help construct county jails, and the County would cooperate with the planning and construction of the re-entry facility. Corrections would be responsible for performing CEQA review of the reentry facility.

The City of Santee sued, alleging CEQA analysis should have been performed because the siting agreement was a “project.” In particular, Santee alleged the approval of the siting agreement committed the County and Corrections to expanding the existing County jail located in Santee to house the reentry facility. The County and Corrections demurred. The trial court sustained the demurrer. Santee appealed.

The Court applied the test established by Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, and found the approval of the siting agreement was not a “project”:

• The siting agreement did not select a location for the reentry facility.
• The agreement did not reference expansion of the existing jail in Santee.
• The agreement did not commit Corrections to select any of the locations identified by the County for the reentry facility.
• Financial assistance would be provided only if Corrections ended up selecting a site.
• The County’s commitment to convey county-owned land was conditional, because that obligation would arise only if Corrections selected a county-owned site.
• The agreement had no direct impact on the contemporaneous County proposal to expand the County jail in Santee.
• Preliminary infrastructure studies at the State-owned Otay Mesa site reflected Corrections’ efforts to determine the feasibility of the site, not a commitment to approve a project there.
• The County had not impermissibly “segmented” its review of the siting agreement, the reentry facility, and the Santee jail expansion.

“In sum, because nothing in this record suggests the siting 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 [C]ounty’s demurrer to Santee’s petition.” The trial court did not err in declining to provide Santee with leave in amend.

Comment: When the Supreme Court issued its decision in Save Tara, there was concern among agencies that, because the Supreme Court did not adopt a “bright line” test, petitioners would be encouraged to challenge under CEQA all manner of preliminary agency actions. There was also concern that, because the Save Tara Court did not adopt a “bright line” test, agencies would enter into such agreements at their peril. The first concern was warranted; the issue of what constitutes “approval” of a “project” continues to be fodder for petitioners. But most of the courts applying the Save Tara test have upheld agency action, so long as the agency’s preliminary agreements or understandings do not foreclose later consideration of mitigation measures or alternatives. The City of Santee decision is the latest example of this trend.