California Court of Appeals, Fourth District, Third Division
Order Field Date 11/22/13
Appeal from a judgment of the Superior Court of Orange County, No. 30-2012-00538072 Steven L. Perk, Judge.
Rutan & Tucker, Philip D. Kohn, Jeffrey T. Melching and Michelle Molko for Plaintiff and Appellant.
Nicholas S. Chrisos, County Counsel, Jack W. Golden, Chief Assistant County Counsel, and Nicole M. Walsh, Deputy County Counsel, for Defendants and Respondents.
Plaintiff and appellant City of Irvine (Irvine) sued to compel defendants and respondents County of Orange and the County of Orange Sheriff-Coroner (collectively, County) to set aside their decision to approve and submit an application for state funding to expand one of the County’s jail facilities. Irvine alleged the County’s application constituted a project approval under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA) and therefore required the County to prepare an environmental impact report (EIR) analyzing the County’s plans to expand its jail facilities before approving and submitting the application. The trial court disagreed and denied Irvine’s petition for writ of mandate.
We affirm. The County’s application did not constitute a project approval under CEQA because it did not commit the County to a definite course of action regarding the expansion of its jail facilities. The application was merely a preliminary step in the state process for counties to seek funding for jail expansion. Indeed, the state’s process did not require the County to initiate a CEQA review of its expansion plans until after the County submitted its application and received conditional approval to fund the project.
Facts and Procedural History
For more than 40 years, the County has operated the James A. Musick Jail Facility (Musick Facility) on 100 acres of unincorporated land it owns adjacent to Irvine. The 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.
In 1996, the County prepared Environmental Impact Report No. 564 (EIR 564) for the phased expansion of the Musick Facility to a maximum capacity of 7, 584 inmates with the ability to house minimum, medium, and maximum security inmates. The first phase called for the addition of 864 beds. EIR 564 noted the timing and precise phasing for the expansion depended on funding availability. In November 1996, the County certified EIR 564 as complete and adequate under CEQA and the County “approve[d]... and authorize[d] the pursuit of funding, the initiation of design, and the construction of the James A. Musick Jail Expansion... in accordance with the Master Site Plan.”
Irvine sued the County to overturn the decision to certify EIR 564, arguing the report failed to adequately address and mitigate the environmental impacts associated with expanding the Musick Facility. The trial court agreed, ordering the County to (1) vacate its approval of EIR 564 and the Musick Facility expansion plan, and (2) revise EIR 564. The County appealed and this court reversed the trial court’s decision, concluding EIR 564 “satisfie[d] all of CEQA’s requirements.”
While that appeal was pending, the County nonetheless revised EIR 564 to address the trial court’s concerns. In October 1998, the County certified the revised EIR 564 and again “approve[d]... and authorize[d] the pursuit of funding, the initiation of design, and the construction of the James A. Musick Jail Expansion... in accordance with the Master Site Plan.” The County did not proceed with the expansion, however, because it lacked funding.
In 2007, the Legislature passed Assembly Bill 900 (AB 900) to provide funding for local jail construction in two separate phases totaling up to $1.2 billion. (Assem. Bill 900 (2007-2008 Reg. Sess.).) In Phase I, AB 900 allowed counties to apply for a portion of approximately $750, 000, 000. (Id. at § 4; see also Govt. Code, § 15820.903.) In Phase II, AB 900 allowed counties to apply for a portion of an additional $470, 000, 000 after counties reached certain benchmarks under Phase I. (Assem. Bill 900 (2007-2008 Reg. Sess.) § 5; see also Govt. Code, § 15820.913; former Govt. Code, § 15820.918.)
In 2008, the County applied for $100, 000, 000 under AB 900 Phase I to expand the Musick Facility by adding 1, 536 beds. The state conditionally approved the County’s application, but the County ultimately declined the funds because of the conditions the state imposed, including a requirement the County pay at least 25 percent of the expansion costs and construct a state reentry facility as part of the project.
In 2011, the Legislature passed legislation to shift responsibility for jailing certain lower level offenders from the state to counties and thereby increased the need for additional space in local jails. (Assem. Bill 109 (2011-2012 Reg. Sess.).) To accommodate this need, the Legislature amended AB 900’s Phase II funding provisions. Specifically, the Legislature increased the amount of funds available during Phase II to $602, 881, 000, eliminated Phase I’s requirement that counties reach various benchmarks before receiving state funds, and reduced the counties’ required contributions from 25 percent to 10 percent of the project costs. (Assem. Bill 94 (2011-2012 Reg. Sess.) §§ 3, 5; Assem. Bill 111 (2011-2012 Reg. Sess.) §§ 3, 5, 9.)
In October 2011, the County expressed its interest in receiving state funds under AB 900 Phase II and the state invited the County to submit an application. The County’s application (hereinafter, Application or Phase II Application) sought $100, 000, 000 to expand the Musick Facility by adding 512 medium security beds. The Application explained the County was in the master planning and CEQA review stage for its latest version of the Musick Facility expansion and those documents were “mostly completed.” The County also explained it anticipated circulating an addendum to EIR 564 as the CEQA document for its Musick Facility expansion.
On December 6, 2011, the County Board of Supervisors passed a resolution “[a]pprov[ing] the attached Request for Application (RFA) and authorize[ing] Sheriff Coroner Sandra Hutchens to execute the RFA and submit it to the California Department of Corrections and Rehabilitation, Corrections Standards Authority for funding.” In the resolution, the Board of Supervisors provided various assurances the state required as part of the Application and resolved to comply with CEQA before accepting any state funds.
In January 2012, Irvine filed this lawsuit seeking a writ of mandate (1) compelling the County to vacate the Board of Supervisors’ resolution approving the Phase II Application and (2) enjoining the County from proceeding with the AB 900 Phase II process until the County complied with CEQA. Irvine alleged the County’s approval of its Phase II Application was a project approval under CEQA, and therefore the County could not approve the Application until it prepared and certified an environmental impact report or other appropriate CEQA document addressing the current environmental impacts associated with expanding the Musick Facility. The trial court denied Irvine’s writ petition and Irvine timely appealed.
We previously granted the County’s unopposed request to judicially notice certain facts occurring after the trial court denied Irvine’s writ petition. Specifically, the state approved the County’s Phase II Application in March 2012 and conditionally awarded funds to the County. In August 2012, the County released for public review and comment a draft of Supplemental EIR 564, which it believed addressed the environmental impacts associated with its latest plans to expand the Musick Facility. In December 2012, the County certified Supplemental EIR 564 as complete under CEQA and approved the 2012 James A. Musick Site and Facilities Master Plan. Shortly thereafter, Irvine filed a new lawsuit ...