Date: 07-07-2015

Case Style: CITY OF IRVINE, v. COUNTY OF ORANGE et al.,

Case Number: G049527

Judge: Kim Garlin Dunning, Judge. Affirmed.

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Plaintiff's Attorney: Rutan & Tucker, Todd O. Litfin, Jeffrey Melching and Ann Levin

Defendant's Attorney: Nicholas S. Chrisos, Jack W. Golden, Nicole M. Walsh

Description: The Musick Facility consists of about 100 acres of unincorporated land in Southern Orange County. Figure 5-1 from SEIR 564, reproduced below, taken from part of the traffic study in the report, nicely encapsulates its location in the county. As the airstrip markings in the upper left-hand quadrant of Figure 5-1 show, the land is almost due east of the old El Toro Marine Base (the airstrip markings), which is now the Great Park area. When the Great Park and surrounding housing is finally built, the Musick Facility will represent a northeast boundary of Irvine. To the immediate north is hilly terrain (as indicated by the relative scarcity of street markings).
The Musick Facility began in 1964 as an honor farm designed to allow inmates to work off sentences by doing agricultural work. The farm gave inmates the chance to do productive work, and at the same time grow food for the County’s main jail plus other County facilities, such as the Orangewood Children’s Home. Of the 100 acres at the site, 55 were “prime” farmland, and another 10 were farmable. By 1986, all 65 acres were in agricultural use. But the bucolic quality of the honor farm was destined to change. That year, the County prepared EIR 447 in relation to what is, in hindsight, a very modest expansion of the facility to accommodate 1,535 inmates by 2000. EIR 447 was never challenged in court. The document disclosed even then that all 65 acres of agricultural land on the site would eventually be lost to agriculture. The proposed expansion to 7,584 inmates was a product of the mid-1990’s. EIR 564 was prepared in 1996 in that regard. The document came in at 244 pages. EIR 564 was litigated in Musick I. The main jail facilities contemplated by the expansion were to consist of three complexes, each with octagonal modular housing components that would take up most of the 100 acres – save 22 in the southeast corner that might still be farmed by low-risk inmates. Irvine and Lake Forest challenged EIR 564, and the trial court found it deficient in four ways: on the loss of agricultural land, air quality, government services and overall cumulative impact. This court, however, reversed on all four points: EIR 564 did, indeed, disclose an irreversible net loss of agricultural land. (At the time, some 33 “prime” acres were still being farmed at the Musick Facility, as we explained in Musick I). EIR 564 recognized that the project would create additional nitrous oxide emissions since the project would mean numerous daily trips of about 14 miles, but those would be spread out over a large area. EIR 564 further recognized the need for extra police patrols, but to the effect the project posed the threat of increased crime in areas near the jail, we held that is the sort of socioeconomic impact not covered by CEQA. And it sufficiently analyzed the project in relation to the proposed reuse of
the El Toro Base as an airport. Meanwhile, during the pendency of the appeal, the County recirculated newly revised sections of EIR 564 dealing with the loss of agricultural land. This court reversed the trial court’s findings as to the inadequacy of EIR 564 in Musick I, but the project still languished for another 11 years. In the meantime, voters in Orange County rejected the use of El Toro Base as an airport in favor of the use of the land as a “Great Park.” (See Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 180.) So readers can get a sense of proportion between the Musick Facility expansion and the Great Park project, we reproduce Figure 3-6, from the section of SEIR 564 which discusses surrounding land uses, including the Great Park development: With or without the Great Park, the Musick jail expansion project did not go forward. Then, as we explained in Musick II, realignment came, and with it the prospect of state funding. Though not directly discussed, the litigation before us now was adumbrated in Musick II, where we noted that in August 2012, in the wake of its application for realignment funds, the County released a supplement to EIR 564, SEIR 564. SEIR 564 takes up 1,455 pages by itself, and its basic focus is the changes since EIR 564. The County certified SEIR 564 in December 2012, prompting Irvine to file this lawsuit, which was pending at the time the appeal in Musick II was decided. Since Musick II dealt with the argument that some sort of EIR or other “CEQA document”1 was required prior to the County’s application for funding, we may now pick up the story where Musick II left off. While the 2012 SEIR 564 envisions the same expansion to 7,584 inmates as did 1996’s EIR 564, the new plan proposes a large H-shaped building in the middle of the 100 acres, with a series of smaller auxiliary buildings on the periphery of the H building, with open-space areas where EIR 564 retained 22 acres for inmate farming. Why no agriculture? The County’s inmate agricultural programs at the Musick Facility were discontinued by 2009 as a result of “budget constraints,” and SEIR 564 notes that since 2000, administrative and personnel costs had significantly eaten into whatever savings was being achieved from inmates growing County food. SEIR 564 spends 10 pages discussing 7 possible mitigation measures for the loss of the agricultural land (about which more in part III).

Irvine filed this action seeking a writ of mandate to invalidate SEIR 564 in January 2013. The trial court rejected Irvine’s arguments, finding: (1) The changes in the project since EIR 564 (including ceasing all agricultural operations and changing three complexes to one big one) were nicely laid out in a summary of changed items in SEIR 564, and these hardly envisioned a new project requiring a brand new EIR. (2) The County’s responses to Irvine’s formal comments on SEIR 564 were adequate and certainly proportional to their significance. (3) The traffic study was adequate. (4) The examination of the untenability of the mitigation measures for the loss of the farming operation was itself sufficient. A formal judgment denying Irvine’s requested writ was filed November 8, 2013, notice of entry of that judgment was filed November 13, 2013, and Irvine filed its notice of appeal as of January 10, 2014.

Outcome: The judgment is affirmed. Respondents shall recover their costs on appeal.

Plaintiff's Experts:

Defendant's Experts:

Comments: This case is an example of the drowning in “paperwork” Presiding Justice McConnell warned about. We find no infirmity in the SEIR.