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CITY OF SOUTH PASADENA v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, B221118. (2011)

Court: Court of Appeals of California Number: incaco20110322011
Filed: Mar. 22, 2011
Latest Update: Mar. 22, 2011
Summary: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS COFFEE, J. The City of South Pasadena and the City of La Ca ada Flintridge appeal from the judgment denying their respective petitions for a writ of mandate. Appellants' petitions asked the court to order respondent to delete funding for a potential tunnel item from the Los Angeles County Measure R expenditure plan. Measure R, entitled the "Traffic Relief and Rail Expansion Ordinance," imposes a one-half cent sales tax to fund multiple proposed "tran
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COFFEE, J.

The City of South Pasadena and the City of La Cañada Flintridge appeal from the judgment denying their respective petitions for a writ of mandate. Appellants' petitions asked the court to order respondent to delete funding for a potential tunnel item from the Los Angeles County Measure R expenditure plan. Measure R, entitled the "Traffic Relief and Rail Expansion Ordinance," imposes a one-half cent sales tax to fund multiple proposed "transportation and transit items," including a tunnel to close the gap between the 710 Freeway and other freeways. Appellants filed their petitions after voters adopted Measure R in the November 4, 2008, general election. Appellants contend that the trial court erred by denying their petitions because respondent approved the 710 Tunnel without conducting the required environmental review. We affirm.

BACKGROUND

The 710 Freeway Gap

Transportation agencies have tried for decades to close the gap between the 710 Freeway and other Southern California freeways. The 710 Freeway terminates near the common boundary of Alhambra and the City of Los Angeles, north of the 710 Freeway-Interstate 10 intersection. South Pasadena litigated against numerous proposals to develop a 4.5-mile surface freeway extension to link the 710 Freeway to other freeways. In 1999, a federal court enjoined the California Department of Transportation (Caltrans) from developing the surface freeway connection pending final determination of the merits of the complaint of South Pasadena and other plaintiffs. (City of South Pasadena v. Slater (C.D. Cal. 1999) 56 F.Supp.2d 1106, 1110.)

In June 2004, Caltrans withdrew its adoption of the pending surface freeway route. Caltrans and respondent, Los Angeles County Metropolitan Transit Authority (Metro), began considering the alternative of a tunnel to link the 710 Freeway to other freeways. That year, respondent also commissioned a preliminary study to assess the preliminary geological and geotechnical characterization of the area. After the release of the preliminary study in 2006, La Cañada asked Metro to conduct an in-depth feasibility analysis of a 710 Tunnel "before the Metro Board potentially approve[d] the commencement of preparation of an EIR/EIS" for that tunnel. In the same vein, South Pasadena observed that respondent's "initial inquiry into the tunnel concept did not establish either engineering or financial feasibility of a 710 Tunnel." Caltrans later commissioned a study, known as the 2008-2009 feasibility study, to "better characterize the physical and environmental nature of the [710 Tunnel] study area so that a more informed decision can be made when selecting potential alignment alternatives [routes] to analyze." Caltrans anticipates using the 2008-2009 feasibility study "to make recommendations about how/if to proceed" with a 710 Tunnel.

Regional Transportation Plan (RTP)

The Southern California Association of Governments (SCAG) prepares and administers the Regional Transportation Plan (RTP) that includes Los Angeles County. The RTP is a planning document that establishes transportation policy and identifies improvements and programs and funding sources to implement that policy. (Gov. Code, § 65080.) In 2008, after completing a Program Environment Impact Report (PEIR), SCAG adopted the current RTP (2008 RTP). The 710 Tunnel, among hundreds of other items, is listed in the 2008 RTP.

Measure R

On July 24, 2008, respondent approved the Traffic Relief and Rail Expansion Ordinance 08-01 (Ordinance) which proposed a 30-year, one-half percent increase in the sales tax for Los Angeles County to help address "substantial shortages of transportation funds exist[ing] in Los Angeles County." The Ordinance includes Attachment A, the requisite expenditure plan. (Pub. Util. Code, § 130350.5, subd. (f).) On the same date, respondent adopted a resolution requesting that the Board of Supervisors of the County of Los Angeles place Measure R on the November 4, 2008, ballot for submission to the county electors.

The resolution states that the California Environmental Quality Act (CEQA) "does not apply to this tax proposal according to" section 15378, subdivision (b), Title 14 of the California Code of Regulations.1 On July 24, 2008, respondent filed a Notice of Exemption for the ordinance, citing section CEQA Guideline section 15378, subdivision (b) and other exemptions.

Measure R's expenditure plan identifies potential projects and programs (items) that could receive funding from the net revenues generated by the tax, with the estimated cost of each item, project, and other possible funding sources for them. (Pub. Util. Code, § 130350.5, subd. (f).) The expenditure plan lists the 710 Tunnel among dozens of other RTP items and allocates up to $780 million of the estimated $3.73 billion necessary to develop a 710 Tunnel, with funding sources for the remaining $2.95 billion "[t]o be determined."

After voters adopted Measure R, appellants filed petitions asking that the court order respondent to delete funding for the 710 Tunnel from the expenditure plan. The petitions alleged that respondent violated CEQA by failing to conduct the required environmental review before approving the tunnel project.

The Trial Court's Ruling

The trial court determined that the 710 Tunnel does not qualify as a project, and is therefore exempt from prior CEQA review, pursuant to CEQA Guidelines section 15378, subdivision (b)(4), the funding mechanism exemption. The funding mechanism exemption provides that for purposes of CEQA, a project does not include "[t]he creation of government funding mechanisms or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant impact on the environment." (Ibid.)

The trial court considered the provisions of Measure R and circumstances unique to the 710 Tunnel in analyzing the funding mechanism exemption. It noted that Measure R's "expenditure plan itself lists the items to be funded by [Measure R's] proceeds as `potential projects,' and expressly states that any project's definition will depend on the final environmental [review] process." While it acknowledged that the expenditure plan had allocated $780 million for the tunnel, the court noted that Measure R allows respondent to amend "the expenditure plan for any purpose—which would include elimination of the project . . . altogether." It also alluded to the possibility that studies could find that the tunnel plan was not feasible.2

DISCUSSION

Appellants contend that respondent's decision to include the 710 Tunnel in the Measure R expenditure plan constituted its approval of a project for purposes of CEQA and that respondent failed to conduct the required CEQA review. We disagree.

Basic CEQA Principles

"`With narrow exceptions, CEQA requires an EIR [environmental impact report] whenever a public agency proposes to approve or to carry out a project that may have a significant effect on the environment. [Citations.]' (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390-391 . . . .) `"Approval' means 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.' (CEQA Guidelines, . . . § 13532, subd. (a).) `An activity that is not a `project' as defined in the Public Resources Code (see § 21065) and the CEQA Guidelines (see § 15378) is not subject to CEQA. (CEQA Guidelines, § 15060, subd. (c)(3).)' (Muzzy Ranch Co. v. Solano County Airport Land Use Com. [2007] 41 Cal.4th at p. 380 . . . .)" (Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara (2009) 179 Cal.App.4th 113, 117 (Sustainable Transportation Advocates).) "In interpreting CEQA, we accord the CEQA Guidelines great weight except where they are clearly unauthorized or erroneous. [Citation.]" (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380, fn. 2 (Muzzy Ranch).)

Standard of Review

"Whether an activity constitutes a project under CEQA is a question of law that can be decided de novo based on the undisputed evidence in the record. [Citation.]" (Plastic Pipe & Fittings Assn. v. California Building Standards Com. (2004) 124 Cal.App.4th 1390, 1412-1413; accord, Muzzy Ranch Co., supra, 41 Cal.4th at p. 382.) The instant appeal, therefore, "`. . . presents no question of deference to agency discretion or review of substantiality of evidence. [Citation.]' [Citation.]" (Association for a Cleaner Environment v. Yosemite Community College (2004) 116 Cal.App.4th 629, 637.)

The 710 Tunnel Is Not a Project for Purposes of CEQA

"[W]hen an agency proposes to adopt `a mechanism for funding proposed projects that may be modified or not implemented depending upon a number of factors, including CEQA environmental review,' no commitment to the projects has been made and no environmental review is required." (City of Santee v. County of San Diego (2010) 186 Cal.App.4th 55, 59 (Santee), citing Sustainable Transportation Advocates, supra, 179 Cal.App.4th at p. 123.) Appellants claim that respondent approved "a specific, well defined tunnel project prior to CEQA review of that project," and "through Measure R [respondent] promised the public a tunnel, not an unspecified congestion management fund[.]" The record belies their claim.

Respondent did not promise the public a 710 Tunnel. Measure R literature includes the "I-710 North Gap Closure (Tunnel)" in a list of "Proposed Projects and Programs." (Italics added.) Ordinance Section 11, paragraph (a) discloses that respondent "may amend this Ordinance, including Attachment A [the expenditure plan], with the exception of Section 11 ["Amendments"], for any purpose, including as necessary to account for the results of any environmental review required under [CEQA] of the individual specific projects listed in [the expenditure plan]." (Ibid.; see Sustainable Transportation Advocates, supra, 179 Cal.App.4th at p. 123.)

The 710 Tunnel was not a "well defined tunnel project" when respondent included it in the expenditure plan. The 710 Tunnel 2008-2009 feasibility study was incomplete when respondent approved its inclusion in the expenditure plan. Caltrans had commissioned that study "to make recommendations about how/if to proceed" with a 710 Tunnel. (See Sustainable Transportation Advocates, supra, 179 Cal.App.4th at p. 123.)

Respondent has not Approved the 710 Tunnel for CEQA Review Purposes

Relying upon Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 126, 140, 141 (Save Tara) and Muzzy Ranch, supra, 41 Cal.4th, page 383, appellants contend that respondent failed to comply with the CEQA provisions "relating to proper timing of CEQA review, before it approved the $780 million for funding the 710 Tunnel." Neither the record nor relevant authorities support their contention.

According to appellants, respondent approved or "committed to the 710 Tunnel" by allocating $780 million for the tunnel in the expenditure plan. They argue that the terms of the Ordinance thereafter precluded respondent from using Measure R funds for "an alternative that includes transit without returning to the electorate." Appellants base the latter argument on the mistaken premise that the Ordinance prevents respondent from transferring Measure R funds allocated for highway projects to transit projects without returning to the electorate. Section 11, paragraph (b) of the Ordinance provides that "[n]ot more than once in any ten (10) year period commencing after the year 2019, [respondent] may adopt an amendment transferring Net Revenues between the Transit Capital Subfund and the Highway Capital Subfund." We are not persuaded by appellants' claims that the requisite two-thirds majority of respondent's board will constitute an overwhelming obstacle to expenditure plan amendments. The Ordinance provides respondent the flexibility to consider an alternative that includes transit without returning to the electorate.

CEQA and CEQA Guidelines declare that funding mechanisms that do not make a binding commitment to spend in a particular manner are exempt from the definition of a project. (CEQA Guidelines § 15378, subd. (b)(4); Kaufman & Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464, 476.) Kaufman involved the establishment of a Mello-Roose District to finance anticipated future improvements including new schools. The Kaufman court concluded that the only foreseeable impact from formation of the Mello Roose District was that "when the District does determine sometime in the future to acquire sites for the construction of schools, . . . it will have some of the funds necessary to do so." (Id. at p. 474.) It then held that "where funding issues alone are involved, courts should look for a binding commitment to spend in a particular manner before requiring environmental review. (Id. at p. 476.)

Appellants argue that the identification of a 710 Tunnel in Measure R is distinct from the expenditure items in Kaufman because Measure R "earmarks" $780 for the 710 Tunnel. However, the identification of a potential purpose for part of the sales tax revenue is not the equivalent of a "binding commitment to spend in a particular manner[.]" (Kaufman, supra, 9 Cal.App.4th at p. 476.) Measure R authorizes respondent to amend its expenditure plan "for any purpose, including as necessary to account for the results of any environmental review required under [CEQA of any] of the individual specific projects listed [in the plan]."

In Save Tara, our Supreme Court explained "(1) that CEQA not be interpreted to require an EIR before the project is well enough defined to allow for meaningful environmental evaluation; and (2) that CEQA not be interpreted as allowing an EIR to be delayed beyond the time when it can, as a practical matter, serve its intended function of informing and guiding decision makers." (Save Tara, supra, 45 Cal.4th at p. 130.) Courts must look to "the surrounding circumstances, as shown in the record of the decision, to determine whether an agency's [action] . . . constitutes a `decision . . . which commits the agency to a definite course of action in regard to a project.' ([CEQA Guidelines,] § 15352.)" (Id. at p. 139.) Here, multiple factors indicate the absence of respondent's commitment to a definite course of action in regard to the 710 Tunnel-the incomplete feasibility study which would influence respondent's decision whether to proceed; respondent's having listed the tunnel project as "proposed," in the ordinance; and its disclosure that it would retain the power to amend the expenditure plan, including the 710 Tunnel item. Respondents' expression of preliminary support for the tunnel project does not constitute "commitment" for purposes of CEQA review. (Id. at pp. 136-137.)

Appellants' position is not supported by Muzzy Ranch. The issue in Muzzy Ranch was whether an airport land use commission had conducted sufficient environmental review when it adopted an airport land use plan and relied on a distinct exemption-the common sense exemption. The decision considered whether the plan constituted a project under CEQA; it did not analyze the extent of commitment based on funding considerations. (Muzzy Ranch, supra, 41 Cal.4th 372.)

The Risks Appellants Predict are Improbable

Appellants also claim that making "a huge financial commitment . . . to a specific, well defined tunnel project prior to CEQA review of that project creates the real risk that the EIR that will be prepared is a post hoc justification for the partially funded tunnel, as opposed to a neutral evaluation of alternatives[.]" The record does not suggest a serious risk of a "post hoc justification," unbiased EIR. Respondent and Caltrans will use the 2008-2009 feasibility study to decide whether and where a 710 Tunnel should be constructed. The earlier 2006 feasibility study candidly describes the need for further analysis after the 710 Tunnel concept is more fully defined. For example, the executive summary of the 2006 Route 710 Tunnel Technical Feasibility Assessment states, "Although this assessment has examined a variety of issues related to a tunnel, it was by no means intended to be comprehensive nor exhaustive in scope." The same summary refers to the "limited existing geologic and geotechnical information and the exploratory drilling program conducted for th[e] feasibility assessment," and explains that "there are several subsurface challenges that need to be quantified including location of the seismic faults and depth of the ground water." It concludes that "it is warranted that the tunnel concept be advanced to the next more detailed stage to . . . determine whether the tunnel concept can ultimately serve as the alternative to complete the Route 710 Freeway." Such statements do not portend the use of anything other than an unbiased, thorough EIR that fully considers all alternatives.

Sustainable Transportation Advocates, supra, 179 Cal.App.4th 113

Appellants and amici curiae pose multiple arguments in urging us to limit our holding in Sustainable Transportation Advocates. They argue that Sustainable Transportation Advocates establishes, or could be interpreted as establishing, a new test for determining when an agency approves a project for purposes of requiring CEQA review. We disagree. According to South Pasadena, Sustainable Transportation Advocates requires absolute certainty about project implementation before finding that an agency approves a project. South Pasadena misreads Sustainable Transportation Advocates. Instead of adopting a new test, we explained that an agency should conduct CEQA review when it has "committed itself to [any] project as a whole or to any particular features, so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project. [Citation.]" (Sustainable Transportation Advocates, supra, at p. 120.) Our explanation is based on our Supreme Court's similar explanation in Save Tara, supra, 45 Cal.4th, page 138.

None of appellants' arguments compel us to limit or clarify our decision in Sustainable Transportation Advocates. Such arguments include the possibility that "agencies could interpret the decision as creating a sweeping exemption to CEQA for funding decisions," or try to avoid CEQA by merely including amendment provisions in allocations of money for infrastructure projects. These risks seem remote. Amici curiae Natural Resources Defense Council and Center for Biological Diversity argue that Sustainable Transportation Advocates and the trial court's application of it "conflict with and seriously undermine well-established principles of CEQA interpretation." They further argue that "[a]llowing agency-proposed ballot measures to postpone environmental review until after funding a project is secured could open the floodgates to unsustainable projects" and encourage agencies to place projects with potentially significant environment impacts on the ballot before analyzing whether more sustainable alternatives exist, which would "deal a serious blow" to groups seeking to find sustainable transportations solutions. We find no reasonable basis for limiting or clarifying our Sustainable Transportation Advocates decision.

DISPOSITION

The judgment is affirmed. Costs are awarded to respondent.

We concur:

YEGAN, Acting P.J.

PERREN, J.

FootNotes


1. Further references to the Code of Regulations are referred to as CEQA Guidelines. (The term "CEQA Guidelines" refers to the regulations for the implementation of CEQA authorized by the Legislature (Pub. Resources Code, § 21083), codified in title 14, section 15000 et seq. of the California Code of Regulations, and prescribed by the Secretary of Resources to be followed by all state and local agencies in California in the implementation of CEQA. (Ibid.).)
2. The City of South Pasadena requested that we take judicial notice of the Draft Executive Summary document prepared by Infra Consult (Public-Private Partnership Program-Los Angeles County Metropolitan Transportation Authority-Public-Private Partnership Delivery Options: Initial Six Measure R Projects), which is dated July 8, 2010, (2010 Infra Consult Draft). We decline to do so. The 2010 Infra Consult Draft is not relevant to respondent's July 24, 2008, decision to include the 710 Tunnel in the Measure R expenditure plan. (Evid. Code, § 350; Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578.)
Source:  Leagle

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