Monday, November 25, 2013
C.A. Rejects Challenge to County Jail Expansion as Premature
By KENNETH OFGANG, Staff Writer
A decision to apply for state funding in order to expand a county jail facility is not a concrete action triggering review under the California Environmental Quality Act, the Fourth District Court of Appeal has ruled
Div. Three Friday ordered publication of its Oct. 28 opinion in which it affirmed Orange Superior Court Judge Steven L. Perk’s denial of a writ of mandate sought by the City of Irvine. The city tried to block the county and Sheriff Sandra Hutchens from applying to the state for funds to expand the James A. Musick Jail Facility, located on 100 acres of county-owned land in unincorporated territory adjacent to the city.
The 40-plus-year-old facility originally operated as an honor farm and later was expanded to house slightly more than 700 minimum security inmates, but in recent years it regularly has housed more than 1,200 inmates because of a steep increase in the jail population, the Court of Appeal noted in its opinion.
The county first sought to expand the facility in 1996 by adding 864 beds, bringing capacity to a maximum of 7,584 inmates. An environmental impact report was certified and challenged by the city.
Irvine won that case in the trial court, but the Court of Appeal reversed and found the EIR to be CEQA-compliant, although the county attempted to address some of the city’s concerns by certifying a revised EIR.
The plan languished, however, for lack of funding, until after AB 900 was passed in 2007. The legislation made up to $1.2 billion available to counties for jail construction.
Orange County applied for $100 million to add more than 1,500 beds to Musick, but ultimately decided not to go through with the project because the state attached certain conditions, including requiring the county to pay for at least 25 percent of the costs.
The county revived its interest in 2011, when the Legislature amended AB 900 as part of criminal justice realignment. Among other things, the new legislation added $132 million to the total funds available, eased the benchmarks that the state had previously required counties to meet, and limited the contribution required from the counties to 10 percent.
The county then applied for $100 million to add 512 beds. The city sued for a writ of mandate, seeking to vacate the supervisors’ decision to apply for the money and enjoining any further effort to obtain AB 900 funding until the county complied with CEQA.
Perk denied the writ, concluding that the application was not a “project” within the meaning of CEQA. The Court of Appeal agreed.
Justice Richard Aronson, writing for the Court of Appeal, distinguished Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116. The court held in that case that a city’s conditional agreement to sell land to developers, coupled with its statements in support of the project and financial support, indicated that the city had approved the development as a practical matter prior to conducting environmental impact review.
There is, the justice explained, a significant difference between “advocating or proposing a project and committing to it.”
Aronson noted that state regulations governing AB 900 funding expressly allow environmental review to be delayed until after a conditional award of funds is approved and the funds received by the county. While CEQA compliance is required, he added, the county has approximately a year after receiving a conditional award to document compliance to the state.
There is, the justice explained, an “elaborate process” of state-county cooperation that must be adhered to before an AB 900 project goes forward.
“The Application does not commit the County to proceed with the application process or the Musick Facility expansion. Moreover, the County did not seek to defer environmental review of the proposed project by conditioning its Application on future CEQA compliance. Rather, AB 900 did not require the County to even initiate CEQA compliance until later in the process, but nonetheless designated the County as the lead agency with discretion to identify, select, and impose the mitigation measures and project alternatives it deemed appropriate. Nothing in the County’s application, or the state’s later conditional award to the County, committed the County to the Musick Facility expansion in a manner that effectively precluded the County from considering any project alternatives or mitigation measures that CEQA otherwise required.”
The case is City of Irvine v. County of Orange, G047895.
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