(Cal. Code Regs., tit. 14, § 15378, subd. (b)(4).) In Kaufman Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464 [ 11 Cal.Rptr.2d 792] ( Kaufman Broad), the court held that a school district's resolution to establish a community facilities district (CFD 1) to raise funds, "to acquire sites for the construction of schools, to lease or purchase portable classrooms and buses, and to rehabilitate future facilities" was not a "project" for purposes of CEQA compliance. ( 9 Cal.App.4th at pp. 464, 474.)
d. Case law illustrations: fiscal activity which does not commit a governmental entity to any particular course of action is not a project within the meaning of CEQA. In Kaufman & Broad–South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464, 11 Cal.Rptr.2d 792( Kaufman ), a developer challenged a school district's resolution to establish a community facilities district (CFD) under the Mello–Roos Community Facilities Act of 1982 (Gov.Code, § 53311 et seq.) on the ground the district's formation of the CFD was a “project” within the meaning of CEQA. (9 Cal.App.4th at pp. 468–470, 11 Cal.Rptr.2d 792.)
In dealing with an agency's conclusion that the action in question was not a project within the meaning of CEQA, however, the trial court can employ its own analysis of undisputed facts in the record and decide the question as a matter of law without deference to the agency's decision. ( Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 794-795 [ 187 Cal.Rptr. 398, 654 P.2d 168] ( Fullerton), disapproved on other grounds by Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918 [ 13 Cal.Rptr.2d 245, 838 P.2d 1198]; Kaufman Broad-South Bay, Inc. v. Morgan Hill Unified, School Dist. (1992) 9 Cal.App.4th 464, 470 [ 11 Cal.Rptr.2d 792] ( Kaufman Broad).) The Court of Appeal reviews the trial court's decision de novo, applying the same standards to the agency's action as the trial court applies.
The detachment did not alone constitute a physical change in the environment subject to CEQA. In Kaufman Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464 [ 11 Cal.Rptr.2d 792] ( Kaufman Broad) the court held that the formation of a community facilities district (CFD) was not a project because there was no causal link between the formation of the CFD and the subject of the alleged environmental impact, the construction of new schools. ( Id. at p. 474.)
However, what constitutes a "project" for the purposes of CEQA review "'is an issue of law which can be decided on undisputed data in the record on appeal,' and thus presents no question of deference to agency discretion or review of substantiality of evidence. [Citation.]" (Kaufman & Broad-South Bay Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464, 470 (Kaufman).) B. What Constitutes a "Project" Under CEQA
"Exactly what constitutes a project within the meaning of CEQA is a question which has been addressed by California courts on several occasions since the enactment of CEQA in 1970." ( Kaufman Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464, 472 [ 11 Cal.Rptr.2d 792].) As articulated in recent case authority, there is a two-pronged test for determining whether a public agency's action qualifies as a project under CEQA: The first consideration is "whether there has been an 'activity directly undertaken by any public agency.'
Similarly here the agreement is a preliminary proposal expressly contingent on CEQA compliance. It is not the approval of a project under CEQA. (See also Kaufman Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464, 474-476 [ 11 Cal.Rptr.2d 792] ( Kaufman Broad); Citizens to Enforce CEQA v. City of Rohnert Park (2005) 131 Cal.App.4th 1594, 1600-1601 [ 33 Cal.Rptr.3d 208]; County of Amador, supra, 76 Cal.App.4th at pp. 964-965.) This case contrasts with Citizens for Responsible Government v. City of Albany (1997) 56 Cal.App.4th 1199 [ 66 Cal.Rptr.2d 102].
(§ 21061.)" ( Kaufman Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464, 467 [ 11 Cal.Rptr.2d 792] ( Kaufman Broad).) "The EIR has been aptly described as the 'heart of CEQA.' [Citations.] Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made.
The project description does not include any biosolids management activities that might be undertaken by sanitation agencies in response to the ordinance. An agency's deferral of environmental assessment was appropriate in Pala Band, supra, 68 Cal.App.4th 556, and Kaufman Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464 [ 11 Cal.Rptr.2d 792] ( Kaufman Broad) because the agency had the opportunity to assess all of the physical impacts of its multistage activity in an EIR prepared by the agency at a later stage of the project. Thus, those cases do not use timing considerations to justify an agency's completely avoiding the preparation of an EIR for its project.
New Jerusalem touts "tiering" as a legitimate method of deferring environmental review, but this is a red herring: The Board was asked to determine the fate of growth in the county, and selected new towns over "city-centered" growth. The Board has already prepared and reviewed an EIR: The Board recognized that this policy choice was a "project" under CEQA, i.e., it "may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment" (§ 21065; see § 21151; Guidelines, § 15378, subd. (a)(1) ["adoption and amendment of local General Plans or elements thereof"]): The EIR before the Board treated this selection as a "project" and addressed the potential environmental impacts thereof, the Board rejected the recommendations of the EIR, and found overriding considerations which supported that choice to reject the EIR. (Cf. Kaufman Broad-South Bay, Inc. v. Morgan Hill Unified School Dist. (1992) 9 Cal.App.4th 464, 474, 476 [ 11 Cal.Rptr.2d 792] [formation of assessment district is not a "project" because it neither impels growth nor creates a need for construction of new school]; Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 624-626 [ 263 Cal.Rptr. 813] [Negative declaration for plan amendment; future development contingent on compliance with traffic policy, plan had no present traffic consequences because "a specific development will require future environmental review," and "The decision leads City not one step closer to an ecological point of no return."].) There is nothing in the record which suggests the Board did not treat this "element" (Guidelines, § 15378, subd. (a)(1)) of the general plan amendment as other than a project, only that it stated the designation of the new towns, "was not, by itself, an environment impact," and that further EIR's would precede construction, not that such designation could not foreseeably, albeit indirectly, cause a change in the enviro