Posts Tagged ‘Administrative Record’


In The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) ___Cal App.5th___ (Case No. B271350), the Second District Court of Appeal held that the mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b), do not apply where counsel fails to lodge the administrative record in a CEQA proceeding and receives a judgment denying the petition for writ of mandate.

Despite agreeing by stipulation, counsel for the petitioner did not lodge the record with the court prior to trial. After a hearing on the merits of the matter, the trial court ruled that because the petitioner had failed to lodge the administrative record, it could not support its arguments. Subsequently, the petitioner filed a motion for discretionary and mandatory relief pursuant to Code of Civil Procedure section 473, subdivision (b). The trial court denied petitioner’s counsel’s motion for discretionary relief, ruling that counsel’s failure to lodge the administrative record did not rise to the level of excusable neglect. Nevertheless, the lower court granted petitioner mandatory relief, finding that counsel’s error had deprived the petitioner of its day in court.

The appellate court disagreed. The court held that Code of Civil Procedure section 473, subdivision (b), does not apply where, as here, there has been a trial on the merits. Thus, the court found, counsel’s error had not served to deny the petitioner its day in court. Rather, the error resulted in a failure to present sufficient evidence and therefore the mandatory relief provisions were inapplicable. The Court of Appeal reinstated the lower court’s original judgment denying the petition and complaint, and allowed the City of Los Angeles recovery of appellate costs from the petitioner.

The Fifth District Court of Appeal, in a partially-published opinion, ruled on a cost award in Citizens for Ceres v. City of Ceres (2016) ___Cal.App.4th___ (Case No. F071600). The court disagreed in part with the decision in Hayward Area Planning Association v. City of Hayward (2005) 128 Cal.App.4th 176 (“Hayward Area Planning”), and granted real party in interest’s request for the cost of preparation of the administrative record.

Citizens for Ceres (“Citizens”) filed a petition for writ of mandate under CEQA challenging the City of Ceres’ approval of a Wal-Mart shopping center. At Citizens’ request, the city prepared the administrative record, through its outside counsel. Pursuant to agreement with the city, real party in interest Wal-Mart subsequently reimbursed the city $48,889.71 for the costs of preparing the record.

After the city and real party in interest won on the merits at the trial court, Wal-Mart filed a memorandum of costs requesting payment for the cost of preparation of the administrative record. In response, Citizens filed a motion to tax costs, arguing that the city could have recovered the cost of preparation of the record, but Wal-Mart could not. The trial court granted Citizens’ motion, based on the holding in Hayward Area Planning, and denied Wal-Mart’s request for costs.

The Fifth District Court of Appeal disagreed with the trial court and found that Public Resources Code section 21167.6, subdivisions (b)(1) and (b)(2), do not bar a real party in interest from recovering the cost of record preparation where the petitioner requested that the lead agency prepare the record, and the real party reimbursed the agency. Section 21167.6 provides three express options for preparation of the administrative record in a CEQA action: (i) the agency can prepare the record; (ii) the plaintiff can prepare the record subject to the agency’s certification; or (iii) the agency and the plaintiff can agree on a different procedure. The First District Court of Appeal in Hayward Area Planning held that prevailing parties are entitled to seek an award of the cost of preparing an administrative record only when the record was prepared in one of the three approved ways. The Hayward Area Planning court held that a real party in interest could not recover costs when the petitioner directed the agency to prepare the record and the agency delegated that task to the real party interest.

The Fifth District Court of Appeal explained that Section 21167.6(b)(1) requires the parties to “pay any reasonable costs or fees imposed for the preparation of the record of proceedings in conformance with any law or rule of court.” Wal-Mart applied to recover costs under Code of Civil Procedure sections 1032 and 1033.5, and the court found that there is nothing in section 21167.6 limiting such recovery so long as the record was prepared in one of the three specified ways. Here, the record was prepared in one of those ways—it was prepared by the agency—and contrary to the holding in Hayward Area Planning, the right to recover is not limited any further.

The Court of Appeal reversed the trial court’s order granting Citizens’ motion to tax costs and remanded for the lower court to determine whether the requested administrative record costs were reasonable.

In Ukiah Citizens for Safety First v. City of Ukiah (2016___Cal.Rptr.3d___) the Fourth District Court of Appeal found that the city’s environmental impact report (EIR) failed to sufficiently analyze potential energy impacts and that the adoption of an addendum subsequent to EIR approval could not be considered in determining the EIR’s adequacy because it was not part of the administrative record. Therefore, the appellate court reversed the trial court’s ruling that the EIR was adequate when analyzed in tandem with the addendum.

The project at issue was a Costco warehouse store and gas station. The EIR concluded the project would have significant traffic impacts but the city certified it and adopted a statement of overriding conditions.  CEQA requires that EIRs propose mitigation measures to reduce the wasteful, inefficient, and unnecessary consumption of energy. Although the certified EIR mentioned energy impacts throughout, it did not contain a separate section devoted to energy impacts analysis. One section stated that since the project would comply with the California Code of Regulations Title 24 energy conservation standards, it would not result in wasteful, inefficient, and unnecessary consumption of energy.

Project opponents filed a petition asserting that the EIR failed to include adequate information regarding the project’s energy use. After the writ petition was filed, the Third District Court of Appeal issued an opinion finding that the analysis of energy impacts in an EIR substantially similar to the one at issue in this case was inadequate. In California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173 (CCEC) the Third District held that the energy analysis was insufficient for three reasons: (1) the EIR concluded the project would generate new trips without calculating the impacts of those trips; (2) the EIR improperly relied on compliance with the building code to mitigate energy impacts without analyzing the additional considerations required by appendix F; and (3) reliance on mitigation measures designed to reduce greenhouse gas emissions was misplaced because though there may be a correlation between the two, air quality mitigation is not a substitute for energy analysis. Ukiah’s EIR had all three of these problems. The city addressed these deficiencies by adopting an addendum to the EIR, and the trial court read the two documents together and concluded the energy analysis was adequate.

The court of appeal reversed the trial court’s decision upholding the EIR and found that subject to Code of Civil Procedure section 1094.5 the addendum was not part of the administrative record and therefore could not be considered in deciding whether the city abused its discretion in certifying the EIR. CEQA Guidelines section 15164, which allows the preparation of addendums, assumes the EIR previously certified was adequate and does not allow retroactive correction of inadequate EIRs. Thus, the court directed the city to set aside its project approval and certification of the EIR until recirculation of the energy analysis and consideration of public comments took place. The court did not offer any opinion on the adequacy of the addendum.

In the unpublished portion of the opinion the court rejected the rest of the project opponent’s arguments. First, the impacts from an interchange improvement discussed in the traffic section of the EIR did not need to be analyzed because it was a longstanding proposal that was needed regardless of the project. Second, the population estimates used in the traffic study were supported by substantial evidence. Third, the court held that the noise study was sufficient and that the impacts to nearby hotel guests were insignificant because nighttime deliveries already occurred for existing commercial uses. Lastly, the court found that the Airport Industrial Park specific plan, with which the project was inconsistent, did not apply because it was effectively superseded.

Written by Sabrina S. Eshaghi

In this case, the Fourth Appellate District allowed the County of San Diego to recover over $37,000 in costs for preparing an administrative record, including costs for reasonably necessary paralegal and attorney labor. Otay Ranch, L.P. et al., v. County of San Diego (Sept. 29, 2014), Case No. D064809.

The controversy in this case originates with the County of San Diego’s approval of a mitigated negative declaration for a remediation project at the former Otay Skeet and Trap Shooting Range (the project). Former owners of the shooting range, Otay Ranch, Sky Communities, and Sky Vista, filed a petition for writ of mandate challenging the county’s remediation project. The plaintiffs argued that an EIR was necessary and that the county’s remediation plan did not comply with the Health and Safety Code.

Petitioners elected to prepare the administrative record in this case. After a number of delays, petitioners and the County met to discuss the proposed CEQA record. The County indicated that the record, in its current state, was woefully inadequate. The record improperly included numerous files not related to the project while omitting many necessary, project-specific files. After this conference, the petitioners voluntarily dismissed their CEQA cause of action. They then filed an amended petition and continued to pursue their Health and Safety Code cause of action. But petitioners never filed an administrative record, so the County reclaimed responsibility for preparing the administrative record.

The County did not have the resources available to prepare the administrative record in the limited time available. It therefore employed the help of the outside law firm representing it in the litigation to prepare the record. County’s outside counsel and paralegals worked extended hours to prepare the record in time to file with the County’s opposition briefing. This work included 74 hours of attorney time and 67 hours of paralegal time. The final record included over 300 documents and 18,000 pages, spanning many years of project history—all for a challenged MND. Surprisingly, the day after the county filed and served the administrative record, petitioners dismissed their entire action.

The County subsequently filed a memorandum of costs seeking recovery of approximately $66,000 for preparation of the administrative record. Petitioners moved to tax the majority of these costs. They argued that attorney and paralegal hours could not be included in the cost award for preparation of the administrative record. The County responded that the costs represented the reasonably necessary labor costs of “persons with specialized knowledge,” which is a recoverable record cost. Both the trial court and appellate court agreed.

The County submitted compelling declarations that it was necessary for the attorney and paralegal to be actively involved in reviewing and organizing the record. The documents proposed to be included in the record were technically complex and resulted from a complicated and long procedural history. Specific knowledge and understanding of the project was necessary for the individuals recreating the record. Therefore, the hours spent by the attorney and paralegal were reasonably necessary to the preparation of an adequate administrative record. The trial court awarded $37,528 for record preparation costs, representing the County’s costs incurred after the date the County decided to prepare the administrative record itself. The appellate court found that the trial court did not abuse its discretion when reaching this outcome, so the trial court’s award stood.

Of note in this case, the appellate court dismissed two petitioners from the appeal. The court determined Otay Ranch lacked capacity to appeal because it was a cancelled limited partnership. The court was not convinced that the appeal was part of Otay Ranch’s “winding up” process since the partnership had been cancelled and had completed winding up its affairs well before the appeal. Likewise, Sky Communities lacked capacity to appeal because it was a suspended corporation. A suspended corporation may not prosecute or defend an action, nor appeal from an adverse judgment. Sky Communities insisted the defect was not fatal because the Franchise Tax Board could always revive the corporation, retroactively validating the earlier notice of appeal. But the court noted the Board had not yet issued a certificate of revivor and Sky Communities remained a suspended company lacking the capacity to appeal.

Analysis and Conclusion

The size and complexity of administrative records continues to grow, straining the resources of local governments. However, this case offers hope that at least some courts appreciate the burden of record costs in CEQA litigation. The Fourth Appellate District’s opinion recognizes that, for projects with lengthy procedural history or other technical aspects, specialized knowledge and the expertise of paralegals and attorneys may be required to produce a record sufficient for certification. This characterization is likely applicable to numerous CEQA records, which commonly span tens of thousands of pages as a result of increasingly strict rules created by the courts for CEQA records. Based on this case, local governments should carefully document time reasonably spent by staff and any necessary outside assistance on record preparation in the event these costs are recoverable.

This case also serves as an important reminder for both potential CEQA petitioners and real parties to maintain active partnership or corporate standing. Dissolved partnerships and inactive corporations cannot pursue CEQA litigation.

In a partially published opinion, the court upheld San Francisco’s approval of the Parkmerced project, concluding that the San Francisco General Plan contains adequate standards for population density and building intensity, the city did not violate due process rights in approving a development agreement for the project, and the administrative record properly included certain hearing transcripts. The court affirmed the judgment below. San Francisco Tomorrow v. City and County of San Francisco, Case No. A137753.

Parkmerced is an existing 3,221-unit residential complex on 152 acres in southwest San Francisco. The housing is currently divided between 13-story towers and 2-story townhouses. The proposed project is a comprehensive mixed-use redevelopment plan that proposes, over the course of 20 to 30 years, to demolish all the townhouse units, build an equal number of replacement units, and add 5,679 units. The project also envisions providing new commercial and retail services, transit facilities, parks, and open-space amenities, and improving existing utilities and stormwater management systems. The project would also include office space, a new school, daycare facilities, and a fitness center. The Planning Commission certified the final EIR for the project, after which the Board of Supervisors approved the project. San Francisco Tomorrow and Parkmerced Action Coalition filed a petition for writ of mandate. The trial court denied the petition on all counts. Petitioners argued that the San Francisco General Plan’s Urban Design Element is inadequate for failing to include standards for population density and building intensity as required by Government Code section 65302. “Population density,” the court noted, refers to the number of people in a given area rather than the concentration of dwelling units. The court emphasized that the actual layout of a general plan is for the most part within the local agency’s discretion. Here, the section of the Housing Element describing existing housing stock contained a table and map that together provided an adequate description of the population densities for the Parkmerced area. The table and map also projected the likely future densities throughout the city. The court found this adequate. The Urban Design Element was adequate in establishing maximum dimensions of buildings only above specified heights, as this type of standard was contemplated by case law and the general plan. The court afforded the city broad discretion as to the degree that the circulation element correlated with the changes in population density and building intensity.

Petitioners also contended the trial court erred in dismissing Parkmerced Action Coalition’s due process claim. Petitioners argued that as tenants of Parkmerced, members of the coalition held property rights associated with their rent-controlled units, and those rights had been violated by the failure to provide proper notice. The court found no error. The court noted that the only governmental decisions subject to procedural due process principles are decisions that are adjudicative in nature. Legislative action is generally not governed by procedural due process requirements. To conform to this rule, appellants posited that a development agreement is an entitlement, rather than a law of general applicability. While a few cases support the expansion of due process protection where a legislative act exceptionally affects a small number of people, under state law the approval of a development agreement is a legislative act. The court was unwilling to subject the approval to due process requirements simply because it affected property rights in some manner.

Finally, the court held that the trial court had not erred in including in the administrative record transcripts of a set of hearings before a board committee. Though the audio recordings and their transcriptions constituted “other written materials relevant to the agency’s decision on the merits of the project,” no cases held that such documents must be identified in the motion affirming certification of the EIR in order to be “before the decisionmaker.” Furthermore, the hearings occurred before the board’s decision, and thus the recordings and transcripts were properly part of the administrative record. Even if the transcripts were not part of the administrative record, the court held that petitioner had failed to meet their burden of showing such error was prejudicial.

Citizens for Ceres v. Superior Court of Stanislaus County (2013) __Cal.App.4th__ (Case No. F065690) involved a petition for writ relief from an order of the superior court. The Fifth District Court of Appeal’s order upheld claims by the city and developer that hundreds of documents could be excluded from the administrative record under protection by the attorney-client privilege or the attorney work-product doctrine. The court ruled that CEQA does not abrogate the attorney-client or attorney work-product privileges, but that the common-interest doctrine does not protect otherwise privileged communications disclosed by a developer to the city, or vice versa, prior to the approval of a project.

Background

On Sept. 12, 2011 the City of Ceres certified an EIR for a project by real parties in interest, Wal-Mart Stores, Inc. and Wal-Mart Real Estate Trust. Citizens for Ceres (Citizens) challenged the EIR alleging that the city failed to comply with CEQA. Citizens also challenged the city’s decision to exclude all communications between itself and the developer from the administrative record. Citizens argued that under CEQA (Public Resources Code, § 21167.6, subd. (e)) communications between the city and developer, as well as the city’s internal communications, are required to be included in the record. Further, Citizens alleged that no privileges applied because Section 21167.6 states that it applies “notwithstanding any other provision of law.”

The city argued that that the communications were protected by attorney-client privilege, work-product privilege, or other privileges and protections, including the common-interest doctrine. The city and the developer deliberately structured their communications to be based on privilege, realizing the project would be controversial. The city provided a privilege log, but maintained there was no obligation to do so.

After production of the privilege log and multiple hearings, however, the parties had not reduced the number of documents in dispute and Citizens were still contesting several hundred documents. The trial court upheld all the privilege claims on the basis that Citizens had not met its burden to prove the privilege asserted for the documents was inapplicable.

Court of Appeal’s Decision

On appeal, Citizens argued that Section 21167.6 renders all privileges inapplicable, or alternatively that the City never made the necessary showing of facts to establish that the privileges applied to the documents.

The court began by reviewing attorney-client privilege, the attorney work-product privilege, and the purposes of both. The court noted that the party claiming a privilege has the burden of establishing facts necessary to support the prima facie claim. This establishes a presumption the relevant communication was made in confidence, shifting the burden of proof to the opponent to establish that the communication was either not confidential or that the claimed privilege does not apply. According to the court, the “purpose of the attorney-client privilege is to enhance the effectiveness of our adversarial legal system by encouraging full and candid communication between lawyers and clients.” The purpose of the work-product privilege is to protect attorneys’ privacy to encourage thorough trial preparation, which includes analysis of unfavorable aspects of cases.

The court, however, rejected Citizens’ argument that the phrase “notwithstanding any other provision of law” in section 21167.6 abrogates the attorney-client privilege or the attorney work-product privilege. The court noted that Evidence Code section 911(b) forbids courts from creating privileges or exceptions through case-by-case decision making. The court found, however, that knowing this constraint, “the Legislature did not likely intend to make CEQA administrative records a privilege-free zone by the indirect means of placing the phrase ‘notwithstanding any other provision of law’ at the beginning of section 21167.6, four subdivisions away from the administrative-record provisions in subdivision (e).” The court noted that public policy and the public interest support granting privilege to public agencies, despite competing concerns for open government. In light of the similar considerations that apply to the attorney work-product doctrine, the court stated it believed that if the Legislature had intended to abrogate all privileges for the purposes of compiling CEQA administrative records, it would have expressly stated such intent.

With respect to the application of the common-interest doctrine to communications between an agency and a developer for the purposes of CEQA, the court found that the doctrine does not protect agency-applicant disclosures made before project approval. The common-interest doctrine is derived from Evidence Code sections 912 and 952 and a Law Revision Commission comment on Evidence Code 952 which remarks about extending the attorney-client privilege to communications between two parties’ attorneys regarding matters of “joint concern.” In general, the doctrine permits disclosure between parties with a common interest, without waiving privileges, when the disclosure is necessary to accomplish the purpose for which the parties sought legal advice. The court found, however, that prior to completion of environmental review and project approval, an agency and developer cannot have an interest protected by the common interest doctrine. The court noted that the applicant’s primary interest is that the agency produces a legally defensible EIR that is favorable to the project. Yet, a lead agency is presumptively neutral and objective in its interests during the environmental review and project approval process. Therefore, before a lead agency has approved a project, it cannot have a biased interest in producing an EIR that supports the applicant’s proposal. While both parties have an interest in producing a legally adequate EIR, the court determined that “the agency cannot share the applicant’s interest in an EIR that supports the project as proposed until the environmental review process is complete.” Thus, the court found that the lead agency and developer interests are “fundamentally at odds” such that they waive privileges associated with any communications they disclose to each other before the project’s approval.

The court recognized that its holding may conflict with the holding by the Third District Court of Appeal in California Oak Foundation v. County of Tehama. There the court upheld the application of the common-interest doctrine as preventing waiver in the county’s disclosure of certain document to counsel for the developer. The Third District found that the purpose of achieving compliance with CEQA includes producing an EIR what will withstand a legal challenge for noncompliance and, therefore, disclosing “advice to a codefendant in the subsequent joint endeavor to defend the EIR” falls under the common-interest doctrine. The court of appeal in Citizens for Ceres argued that italicized language from California Oak impliedly referred to a disclosure occurring after the project’s approval. The City and Developer argued that the Third District’s remarks in California Oak referred to all privileged communications, including those related to the production of a legally defensible EIR (i.e., occurring prior to project approval). The court disagreed and declined to follow California Oak if that was the case.

The court further found that, while San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738 supports the view that an agency and applicant may have a common interest in ensuring an EIR is compliant with CEQA, it does not establish a common interest for the purposes of the common-interest doctrine. Furthermore, the court rejected the city and developer’s contentions that the court’s holding conflicted with the proposition that the applicability of the common-interest doctrine does not depend on the commencement of litigation. The court noted the attorney-client privilege and attorney work-product doctrine apply in many situations not yet involving litigation and that, in this case, the time of project approval, rather than commencement of litigation, was the crucial point in time.

Thus, the court of appeal concluded the city and developer waived attorney-client and attorney work-product privileges for all communications disclosed before the city approved the project. Therefore, communications under the scope of Section 21167.6, subdivision (e) must be included in the administrative record. The common-interest doctrine still applies to communications protected by privilege disclosed after project approval.

Consolidated Irrigation District v. The Superior Court of Fresno County (5th Dist. April 28, 2012) __Cal.App.4th__ (Case No. F063534)

In this case, the court considered numerous issues regarding the proper interpretation of Public Resources Code section 21167.6, subdivision (e). This section of CEQA addresses the materials that should be included in the administrative record. The court also addressed the Public Records Act.

Factual and Procedural Background

In 2009, the City of Selma published a draft EIR for a proposed commercial project. The NOA indicated that project files would be maintained at the community development department. On March 1, 2010, the city council approved the project. On March 30, 2010, Consolidated Irrigation District (CID) filed a lawsuit alleging that the city had violated CEQA when it approved the project. CID elected to prepare the administrative record.

The city resisted requests by CID to obtain documents under the Public Records Act.  After disputes over the procurement of certain documents for the administrative record, both parties stipulated that the record would be prepared jointly. Before certification of the record, CID requested three transcripts and 39 enumerated documents (some of which were available on the internet). Counsel for the project proponent rejected most of the requests for inclusion of additional materials in the administrative record. The city proceeded to certify the record.  CID responded that the city had abandoned its agreement to cooperate in preparation of the administrative record.

CID filed a motion for leave to conduct limited discovery. CID alleged the record prepared and unilaterally lodged by the city contained few internal agency communications, and that the city had refused to produce any original correspondence, as well as other technical data and documents used in preparation of the EIR. CID also filed a motion to augment the administrative record and a petition for writ of mandate under the Public Records Act to access the city’s project files and files held by the city’s consultants. The trial court denied all three motions.

The Public Records Act

The Public Records Act provides persons with the right to inspect public records. For this act, “public records” includes “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency.” Because CID was subsequently provided with documents from the city’s primary consultant, the only documents at issue for the Public Records Act request were documents held by sub-consultants.

The appellate court determined the issue turned on whether the files of the sub-consultants were “in the possession of the agency” for purposes of the act. CID asserted that the city had the right to control these documents based on provisions between the city and the primary consultant. The appellate court disagreed with CID’s interpretation of the contract. CID also argued the city had the potential to control the documents because the sub-consultants might provide the documents to the city upon request. The appellate court determined the mere possibility of control did not establish constructive possession of the files. The appellate court affirmed the trial court’s denial of CID’s petition under the Public Records Act.

Motions for Discovery in CEQA Proceedings

The city argued CID’s motion for discovery was not allowed in a CEQA case. The appellate court cited section 21167.4, subdivision (c), which establishes the briefing schedule and expressly authorizes the trial court to extend the schedule for good cause, including the conduct of discovery. Further, past case law confirmed that courts have allowed discovery in CEQA proceedings.

Transcripts and Recordings of Hearings

While the administrative record certified and lodged by the city included transcripts of some public hearings, it did not include the transcripts for three meetings CID expressly requested. The city instead stated the transcripts did not exist, and CID could purchase a copy of the tape recordings to be transcribed. If CID did prepare transcripts from these tapes, the city informed CID it might object to inclusion of the transcripts in the administrative record as not likely to be an accurate reflection of the oral proceedings.

Section 21167.6, subdivision (e)(4), indicates that the administrative record shall include, but is not limited to, “[a]ny transcript or minutes of the proceedings” where an agency considered an environmental document for a project. The city argued no transcripts of the meetings existed. The project proponent argued that CID failed to take the reasonable step of purchasing tape recordings of the meetings and having them transcribed. Both city and the project proponent believed that section 21167.6, subdivision (e)(4) required either a transcript or minutes of the proceeding.

The appellate court determined that, by the strict definition of “transcript,” no transcripts of the three proceedings at issue existed. Therefore, the provision of subdivision (e)(4) or section 21167.6 did not directly require an order of augmentation in this case. The appellate court then considered whether the audio recordings of the meetings constituted “other written materials” for the purpose of the same section.

The appellate court determined the term “written,” as used in the section, was ambiguous and that ambiguity had to be resolved in a way that “best effectuates the purpose of the law.” Because this issue arose under CEQA, the court chose the interpretation that “best promotes accountability, informed self-government, and environmental protection.” This required a broad interpretation of “written materials” to include audio recordings of public proceedings for which there is no transcript. Minutes of proceedings would be insufficient due to the risk of errors of exclusion. Based on this interpretation, the appellate court concluded CID’s motion to augment the administrative record should have been granted for the tapes of the three meetings.

Documents Referenced in a Comment Letter

CID argued that the administrative record should have included certain studies and reports referred to in comment letters sent to the city. The appellate court analyzed CID’s argument based on four separate categories of documents.

Documents in the first category had previously been provided to the city by CID.

Documents in the second category were named in comment letters along with a general web site where the document could be located. The comment letter included a specific request that these documents be included in the record of proceedings. The court noted that some effort could be required to navigate from the general web site to more specific pages and to identify the specific document referenced in the comments.

The third category included documents with a URL citation but without a request that the documents be included in the record of proceedings. The court noted these “specific webpages” would produce the document in question when visited with a “minimal” burden on lead agency personnel.

The fourth category of documents named in comment letters simply identified the organization that created the referenced study or report. No further information was provided for locating these documents on the internet, and no offer was made to provide a hard copy of these documents.

The appellate court again cited CEQA section 21167.6, subdivision (e), to resolve the question of whether these different documents should have been included in the administrative record. Subdivision (e)(6) requires the inclusion of all written comments on environmental documents prepared for the project. Subdivision (e)(7) requires the inclusion of all written evidence or correspondence submitted to the public agency with respect to compliance with CEQA or with respect to the project.

The appellate court determined the term “written comment” as used by subdivision (e)(6) most certainly included the letters submitted by CID; however, this term did not include documents cited to support the assertions and contentions made in the comment letters. Therefore, documents cited in a comment letter could not be “bootstrapped” into the record of proceedings using subdivision (e)(6).

To determine whether subdivision (e)(7) required inclusion of the various categories of documents submitted by CID, the appellate court analyzed both the meaning of “written evidence” and “submitted to.” The appellate court adopted a broad interpretation of “written evidence.” Evidence is something that tends to prove or disprove an alleged fact. The court looked at multiple definitions of “written” and found that each supported the conclusion that documents that can be accessed on the internet are “written.”  The court held the term “submitted to”, which generally means “presented or made available for use or study,” is concerned with the effort that must be expended by the lead agency in using or studying the written evidence presented to it. The court employed this pragmatic approach to avoid placing an unacceptable burden on lead agency personnel and their limited resources.

The court held documents in the first category were clearly submitted to the agency. CID delivered hard copies to the city in connection with a different project and offered to provide additional copies upon request. CID’s letter also specifically requested that these documents be included in the record of proceedings. The court determined it was not an unreasonable burden for the city to obtain the documents from their files for the other project, or in the alternate, to request additional hard copies from CID. As a result, the appellate court determined these documents were part of the administrative record.

In contrast, the court determined it was an unreasonable burden to expect city staff to acquire the second category of documents. These documents were named in CID’s comment letter, which provided only a general web site.  Additional searching was required to find the specific web page where the document was located. While some documents might be easily located from a general webpage, others might prove difficult to find. The court noted it would take little effort on the part of the commenter to provide the URL linking directly to the document. Therefore, these documents were not properly submitted to the city and were not part of the administrative record.

Documents in the third category were identified by a citation to the specific webpage containing the document. This information made the documents readily available to city personnel and therefore they should have been included in the record.

Documents comprising the fourth category were merely named in comment letters without citation to a general or specific webpage. For these documents, the effort put forth by the commenter was minimal, and the time and effort of the lead agency personal to locate and acquire the document could be substantial. These documents, the appellate court held, were clearly not submitted to the lead agency.

Documents Referenced and Relied Upon in an EIR

CID argued the administrative record was incomplete because it omitted documents referenced and relied upon in the EIR. Subdivision (e)(10) of section 21167.6 indicates the record of proceedings shall include copies of documents relied upon in any EIR and either made available to the public during the public review period or included in the public agency’s files on the project. CID relied on the second clause to argue that documents used to prepare the EIR and held in files of sub-consultants should have been part of the administrative record.

The appellate court determined that the term “public agency’s files” means files owned by the agency or in its custody or control. The court noted that the agreement between the city and primary consultant stated that the City owns the contents of the files held by the primary consultant used in connection with the project. As a result of this ownership interest, the appellate court determined the primary consultant’s files were part of the public agency’s files on the project for the purposes of section 21167.6, subdivision (e)(10).

The appellate court determined that CID could not establish that the city owned or exercised custody or control over the files held by sub-consultants. As a result, these files were not part of the public agency’s files on the project.

Certification of the Administrative Record.

The appellate court addressed whether error in the certification of the administrative record constituted prejudicial error in this case. The court determined it did not because the certification was no longer the operative document that defined the contents of the record. Instead, the trial court’s order specifying the scope of the record superseded the city’s certification. The appellate court noted trial courts have the authority to resolve disputes over the scope of the administrative records.  Appellate courts then review the trial court’s determination in these cases and not the determination of the public agency that certified the record.

The appellate court pointed out that, in this case, the matter would be sent back to the trial court, which would comply with the appellate court’s directions and issue a new order that would define the scope of the administrative record.

Conclusion

This is a significant case addressing the scope of documents that must be included in administrative records prepared for CEQA proceedings. Lead agencies compiling an administrative record in response to litigation should include materials in the primary consultants’ project files to the extent the lead agency owns or exercises control or custody over those files. Additionally, agencies should include audio tapes where no transcripts are available, or where the minutes of a meeting may not fully convey the context and content of testimony and discussions at the meeting. Lastly, the decision provides some helpful clarification regarding sources of information referenced in written comments and indicates that the specificity and manner in which they are presented dictates whether they should be included in the record. Overall, the decision confirms that the scope of the record of proceedings in a CEQA case is quite broad, as the language of the statute indicates.

Citizens for Open Government v. City of Lodi, (3rd Dist. March 28, 2012 [modified April 25th, 2012]) __Cal.App.4th__ (Case No. C065463, C065719)

Factual and Procedural Background

In 2002, Browman Company applied to the City of Lodi for a use permit to develop a 35-acre shopping center. In 2003, the city issued a NOP for a draft EIR for the proposed project. The city approved the project in 2004. Lodi First and Citizens for Open Government (COG) filed separate lawsuits (Lodi First I and Citizens I) challenging the project.

In December 2005, the trial court granted the petition for writ of mandate in Lodi First I.  The city council rescinded approval of the project and decertified the 2004 EIR. In 2006, the city issued a NOP for the revised EIR. In 2007, COG and the city stipulated to dismiss Citizens I.

In October 2007, the city circulated revisions to the EIR for public review and comment.  The city concluded some of the comments it had received on the revised draft EIR were beyond the scope of the revisions and barred by res judicata. The city declined to provide substantive responses to these comments. In May 2009, the city council conditionally approved the project entitlements and adopted findings of fact and a statement of overriding considerations for the project.

In order to proceed with the project, the city filed a petition to discharge the writ in Lodi First I. As part of this process, the city lodged a supplemental administrative record. Both COG and Lodi First filed separate lawsuits challenging the final revised EIR. After filing their lawsuits, both groups contended the supplemental administrative record excluded documents, including internal agency communications and communications with city consultants.

COG filed a motion to augment the supplemental administrative record. The court granted the motion in part and denied the motion in part based on the attorney-client, attorney-work-product and deliberative process privileges. In 2010, following a hearing on the merits, the trial court granted the City’s request to discharge the 2005 writ in Lodi First I and deny the petitions in Citizens II and Lodi First II. Both Lodi First and COG appealed.

The Appellate Court’s Decision

On appeal, Lodi First and COG argued the trial court erred in applying the deliberative process privilege to exclude some emails from the administrative record. Appellants also challenged the sufficiency of the revised EIR on numerous grounds and disputed the trial court’s ruling precluding them from challenging certain issues based on res judicata.

The Deliberative Process Privilege

Under the deliberative process privilege, senior officials in government enjoy a qualified, limited privilege not to disclose certain materials or communications. These include the mental processes by which a given decision was reached and other discussions, deliberations, etc., by which government policy is processed and formulated. The deliberative process showing must be made by the one claiming the privilege. Not every deliberative process communication is protected by the privilege.  Instead, the privilege is implicated only if the public interest in nondisclosure clearly outweighs the public interest in disclosure.

In the trial court, the city argued the deliberative process privilege applied because the city manager, city attorney, community development director, and other consultants engaged in various deliberative discussions and document exchanges concerning revisions to the EIR. The privilege was required, the city argued, “to foster candid dialogue and a testing and challenging of the approaches to be taken…” On appeal, Lodi First claimed this assertion was insufficient to support nondisclosure through the deliberative process privilege. The appellate court agreed, finding the city offered a correct statement of policy, but that invoking policy was not sufficient to explain the public’s specific interest in nondisclosure of the documents at issue. As a result, the city failed to carry its burden, and the trial court erred in excluding 22 e-mails from the administrative record based on the deliberative process privilege.

While the trial court erred in excluding these documents, this error was not necessarily prejudicial. Under the standard for prejudicial error established by the California Constitution, the appellant bears the burden to show it is reasonably probable he or she would have received a more favorable result at trial had the error not occurred.

Lodi First acknowledged it could not satisfy its burden to prove prejudice on appeal because it had not seen the documents that were erroneously withheld. Lodi First claimed the improper withholding of the documents itself was prejudicial because it was impossible for Lodi First to acquire them. The appellate court disagreed and noted Lodi First should have sought writ review of the trial court’s ruling on the motion to augment the administrative record. In addition, the appellate court, citing Madera Oversight Coalition Inc. v. County of Madera (2011) 199 Cal.App.4th 48, disagreed with Lodi First’s contention that the incomplete record itself was a prejudicial error requiring reversal regardless of the actual contents of the withheld documents.

The Range of Alternatives Considered

Lodi First argued the revised EIR did not comply with CEQA because the range of alternatives to the project did not both satisfy most of the project objectives and reduce significant effects of the project. Relying on both the CEQA Guidelines and long-standing precedent, the court rejected Lodi First’s argument.

First, the court of appeal cited CEQA Guidelines section 15126.6 for the assertion that “there is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason.” In addition the court noted that the California Supreme Court has explained how a “rule of reason” must be applied to the assessment of alternatives to proposed projects.

In this case, the revised project considered five alternatives: (1) no project; (2) alternative land uses; (3) reduced density; (4) reduced project size; and (5) alternative project location.  The alternative land use and reduced project density alternatives were not considered for further evaluation because they were infeasible or would not meet the goals of the project. The appellate court found the rejection of these alternatives for further review was reasonable.  The three remaining alternatives were discussed in detail in the revised EIR and provided substantial evidence of a reasonable range of alternatives.

Urban Decay Analysis

The trial court granted the petition for writ of mandate in Lodi First I, in part, because the analysis of cumulative urban decay impacts was inadequate for omitting two related projects in the geographic area. An updated economic impact/urban decay analysis was prepared in response to the trial court’s order to decertify the original EIR.

Lodi First argued the revised EIR inaccurately described the project’s environmental setting by failing to discuss existing blight and decay conditions in east Lodi. The appellate court, by de novo review, determined the blight at issue was not necessarily related to the retail environment at all. Further, the revised EIR analyzed the potential for urban decay with consideration of conditions in east Lodi. The revised EIR’s discussion of cumulative urban decay impacts was adequate under CEQA.

The Economic Baseline

COG argued the city erred in the revised EIR by failing to assess urban decay impacts “under radically changed economic conditions.” COG asserted the city should have reassessed urban decay impacts in light of the economic recession that occurred after the 2006/2007 economic analysis performed for the project. The appellate court determined the city’s decision not to update the baseline was supported by substantial evidence. First, the city offered evidence that updating the baseline presented a “moving target” problem, where updates to the analysis would not be able to keep pace with changing events.  In addition, the city presented evidence that the changing economic conditions did not affect the urban decay findings based on the 2006/2007 economic analysis. Therefore, the city did not abuse its discretion when it declined to update the baseline.

Agricultural Impacts

COG argued the original EIR and revised EIR failed to disclose cumulative impacts to agriculture and that there was no substantial evidence to support the rejection of a heightened mitigation ratio.

The appellate court first determined that the revised EIR satisfied the standards established by the CEQA Guidelines for discussing cumulative impacts. The EIR explained the amount of prime farmland lost due to the project, the amount of land lost due to the project and other proposed projects, and that the cumulative impacts to agricultural resources would be significant and unavoidable. The discussion met the standard for “adequacy, completeness, and a good faith effort at full disclosure.”

After finding the revised EIR’s discussion of cumulative impacts to agricultural resources adequate, the appellate court determined the city did not have to accept a heightened mitigation ratio as asserted by COG. The city required a 1:1 conservation easement ratio for the loss of farmland, but also determined that agricultural easements do not completely mitigate for the loss of farmland. The city adopted a statement of overriding considerations and asserted the 1:1 ratio is appropriate for the project. COG argued the rejection of a 2:1 mitigation ratio was not supported by substantial evidence. The appellate court disagreed and noted that the appropriate standard was whether the finding that there were no feasible mitigation measures to reduce the impacts to prime farmland was supported by substantial evidence.

The Doctrine of Res Judicata

Lodi First attempted to argue the revised EIR failed to disclose cumulative water supply impacts. The trial court held that res judicata barred Lodi Frist from raising this claim. The appellate court agreed.

Res Judicata (claim preclusion) bars relitigation of a cause of action that was previously adjudicated in another proceeding between the same parties or parties in privity with them and that adjudication resulted in a final decision on the merits. In this case, a writ was issued in Lodi First I and was final on the merits.  The trial court granted Lodi First’s petition and held the 2005 EIR was inadequate under CEQA. The city chose not to appeal, and the ruling was final because the time to appeal passed.

Lodi first attempted to argue res judicata did not preclude its water supply challenge because it was based on new information and the city’s 2009 findings regarding the project’s water supply impacts differed from its 2005 findings. For the purposes of res judicata, causes of action are considered the same if based on the same primary right. A claim is based on the same primary right if based on the same conditions and facts in existence when the original action was filed.

The appellate court determined the problem of overdraft cited by Lodi First was not new evidence. The city’s own 1990 general plan identified overdraft in the aquifer. While Lodi First claimed new evidence established more information than the 1990 EIR, the critical fact was that the city’s water supply was inadequate to serve new development.  This was known at the time of the 2004 EIR. In addition, the court determined the findings were consistent in that both findings were that the project would have no significant impact on water supply and therefore, no mitigation was necessary

Finally, the appellate court disagreed with Lodi First that res judicata should not be applied to the water supply issue due to public policy. When the issue is a question of law rather than of fact, res judicata may not apply if injustice would result or if the public interest requires that relitigation be allowed. Lodi First’s water supply issue did not present a question of law, so the public interest exception did not apply.

Conclusion

This case demonstrates the limitations of the deliberative process privilege for public agencies. Agencies attempting to rely on this privilege must be prepared to support their assertion of the privilege with a specific showing that the nondisclosure outweighs the public interest in disclosure; broad policy statements are not enough to support application of the privilege.  In addition, the case offers an important reminder of the consequences of failing to raise all potential arguments in original CEQA proceedings, and indeed, most regular civil proceedings.

RMM partners Andrea Leisy and Howard Wilkins and associate Laura Harris represented real party in in interest Browman Development in this litigation.

Madera Oversight Coalition, Inc. v. County of Madera
(2011) 199 Cal.App.4th 48

The Fifth District Court of Appeal held the trial court did not err in applying section 21167.6, subdivision (e) and determining which documents to include and exclude from the administrative record.  The Court also held a mitigation measure that proposed to verify that certain archaeological sites are historical resources for purposes of CEQA constituted an unlawful deferral of environmental analysis; that the EIR’s traffic analysis lacked clarity regarding the baseline used to determine the project’s potential impacts; and that the trial court correctly determined that the analysis of the project’s proposed water supply was inadequate.

Real Parties in Interest Tesoro Viejo, Inc., Rio Mesa Holdings, LLC and Tesoro Viejo Master Mutual Water Company proposed the Tesoro Viejo mixed-use development project, a 1,579-acre development located in southeastern Madera County. The project proposed a mix of residential, commercial, and light industrial uses plus areas for open space, recreation, and other public uses. The project would contain up to 5,190 dwelling units and about three million square feet for commercial, retail, office, public institutional, and light industrial uses.

In February 2006, Tesoro Viejo requested that Madera County initiate the project’s environmental review process.  The county circulated the EIR, received comment and provided responses.  In December 2008, the County certified the EIR and approved the project.  Petitioners Madera Oversight Coalition, Inc., Revive the San Joaquin, Inc., and the Dumna Tribal filed a petition for writ of mandamus and complaint for declaratory and injunctive relief challenging the County’s approval of the project.  They alleged violations of CEQA, the Planning and Zoning Law and the Water Code.

In May 2009, the County lodged and certified the administrative record.  Along with their briefing, Petitioners thrice requested augmentation of the administrative record.  After a hearing, the trial court granted the petition.  The parties appealed and cross-appealed.  The dispute focused in part on various questions concerning the scope of the administrative record and the admission of extra-record evidence.

First, the court addressed questions regarding the scope of the record, which involved both rulings made by the trial court and motions filed on appeal.  The court found that legislative intent and case law indicate that, after an administrative record is certified, the trial court has authority to decide issues relating to whether an omitted document should have been included in the administrative record pursuant to the provisions of subdivision (e) of Public Resources Code section 21167.6.  On appeal, the court noted, its role was to review the trial court’s decisions, giving deference to the trial court’s factual determinations, rather than make an independent decision regarding the scope of the record.  The court found such a role was appropriate in light of the non-discretionary nature of the determinations made by the agency in preparing and certifying the administrative record and the independent judicial scrutiny of trial court to in applying section 21167.6, subdivision (e) to the disputes before it.  Furthermore, the court found that petitioners’ motion to augment the record, filed in the appellate court concerning documents on which the trial court had already ruled, was not a proper way to present the court with issues concerning the inclusion of the documents in the administrative record.  Although the court ultimately construed the motion to augment as a direct challenge to the trial court’s decision to deny the request to include four documents in the administrative record, it rejected petitioners’ challenge because they failed to establish the trial court erred in excluding the documents.  The court also rejected respondents’ claims regarding certain documents the trial court excluded from the record and certain documents the trial court included in the record, finding that respondents did not affirmatively demonstrate that the trial court erred.  The court did find that the trial court failed to include one EIR comment letter requested by petitioners, but that no prejudice occurred by its exclusion because the letter raised no issues not raised in the EIR.

The court then reviewed the adequacy of the EIR’s cultural resources analysis.  The court noted that the EIR included analysis of certain archaeological sites at the development site that had the potential to be a “historical resource” for the purposes of CEQA.  The EIR also acknowledged a potentially significant adverse impact on each of the sites.  While the EIR included mitigation which purported to reduce the impacts to a less than significant level, the court found the mitigation constituted improper deferral because it required a “verification” of whether the site was a historical resource before preservation and recovery actions would be required.  The court noted that the verification process described in the mitigation measure is not expressly authorized by CEQA or the Guidelines.  Nor could such a process be harmonized with CEQA and the Guidelines, as Guidelines §15064.5(c)(1) states: “When a project will impact an archaeological site, a lead agency shall first determine whether the site is an historical resource …” The court found use of the word “shall” in CEQA Guidelines, section15064.5, subdivision (c)(1) indicated that the determination whether an archaeological site is an historical resource is mandatory.  Moreover, that provision’s use of the word “first” indicates that the determination must be made before the final EIR is certified and it cannot be undone thereafter.  The court concluded that the mitigation measure set forth a course of action that was contrary to law.

The court also found that, while an EIR’s discussion of mitigation measures for an impact to historical resources of an archeological nature must include preservation in place pursuant to CEQA Guidelines, section 15126.4, subdivision (b)(3), preservation in place is not always mandatory, even when feasible.  The court noted that, preservation in place is the preferred manner of mitigating impacts to archeological sites pursuant to the language CEQA Guidelines, section 15126.4, subdivision (b)(3)(A), unless another type of mitigation better serves the interests protected by CEQA.  The court interpreted “preferred manner” to mean that feasible preservation in place must be adopted to mitigate impacts to historical resources of an archaeological nature unless the lead agency determines that another form of mitigation is available and provides superior mitigation of the impacts.

With respect to the EIR’s traffic analysis, the court found the EIR was inadequate because it used predicted future conditions as a baseline.  Citing CEQA Guidelines section 15125, subdivision (a) and following the court’s interpretation of the guideline in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, the court concluded: (a) a baseline used in an EIR must reflect existing physical conditions; (b) lead agencies do not have the discretion to adopt a baseline that uses conditions predicted to occur on a date subsequent to the certification of the EIR; and (c) lead agencies do have the discretion to select a period or point in time for determining existing physical conditions other than the two points specified in subdivision (a) of Guidelines section 15125 [“as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced”], so long as the period or point selected predates the certification of the EIR. Furthermore, while the respondents asserted the EIR did analyze traffic impacts employing existing conditions as the primary baseline, based on its review of the EIR’s traffic analysis, the traffic impact analysis study attached to the EIR, and the county’s responses to public comments, the court found the EIR lacked clarity regarding which baseline or baselines were used, which contributed to its inadequacy as an informational document.

The court also found that the Water Supply Assessment (WSA) and the EIR did not provide full disclosure of relevant information related to water supply because the analyses ignored contrary information and failed to discuss whether a recent legal decision would affect the availability and reliability of proposed water supplies.  According to the WSA and the EIR, the water demands of the project would be met with surface water delivered from the San Joaquin River under a contract with the United States Bureau of Reclamation. Interpreting the Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 432 the court concluded that the legal adequacy of the EIR’s discussion of the water supply for the Project depends upon whether the discussion included a reasoned analysis (i.e., a “full discussion,” a “good faith effort at full disclosure,” or an “analytically complete and coherent explanation”) of the circumstances affecting the likelihood of the availability of the proposed water supply. While the WSA included an opinion letter of a water expert which concluded the legal issues concerning water supply would not affect the availability of the contractual water supply, neither the opinion letter nor the WSA acknowledged the existence of the a letter from the Bureau of Reclamation stating it would object to the use of the water supply for a municipal supply or for commercial uses.  Nor did the WSA or EIR address a recent legal decision invalidating the water supply analysis for a nearby project which was also proposing to rely on reclamation contracts for water supply.  On these bases, the court concluded the public was not provided a full disclosure of the uncertainties related to the project’s water supply and that the trial court did not err in concluding that the EIR’s discussion of the water supply was inadequate under CEQA.

Finally, the court concluded that the trial court correctly determined it had the discretionary authority under Code of Civil Procedure section 1032, subdivision (a)(4) to apportion costs.  Although the petitioners obtained a writ of mandate in a CEQA proceeding, that nonmonetary relief alone does not entitle the plaintiff to costs as a matter of right under Code of Civil Procedure section 1032, subdivision (b).