Archives: May 2012

Los Angeles City Council Bans Plastic Grocery Bags

On May 23, 2012, Los Angeles became the nation’s largest city to ban plastic bags at grocery stores. The City Council voted 13-1 to ban single-use plastic bags later this year after completing an EIR and adopting an ordinance. Forty-eight other cities in the state already have similar bans; San Francisco’s extends to pharmacies, restaurants, and small retailers. Large retailers in L.A. will have six months to phase out plastic bags (small retailers will have one year), after which they will provide free paper bags for six months. After that, retailers will charge ten cents per bag.

The city currently goes through 2.7 billion single-use plastic bags every year. Environmentalists supporting the ordinance noted that plastic bag waste contributes to ocean pollution, landfill expansion, littered streets, and clogged waterways. Lobbyists and union employees opposing the ban argued that it would result in job loss and shift jobs overseas. A version of the law that was passed in 2010, which covered the unincorporated areas of Los Angeles County, reduced plastic bag use in those areas by an estimated 94 percent.

Little Hoover Blesses Governor Brown’s Government Reorganization Plan

On May 22, 2012, the Little Hoover Commission, a bipartisan state oversight agency responsible for promoting government efficiency, voted 7-0 to endorse Governor Brown’s proposal to reorganize the state government. The Governor’s plan to replace five state agencies with three includes folding the Delta Stewardship Council into the Natural Resources Agency. The proposed changes are not intended to affect the policy independence of each board, but are simply meant to achieve administrative efficiency. The Delta Stewardship Council, for example, already receives a number of administrative services from the Natural Resources Agency and is listed on the agency’s letterhead. The reorganization becomes effective July 1, 2012, and is operative a year from then. The Governor’s plan will save taxpayer dollars by making government more efficient, responsive, and coordinated. The plan is currently unopposed.

First District Court of Appeal Rules a County Board of Supervisors Did Not Need to Hear an Appeal of a Decision to Certify an EIR for Modifications to a Solid Waste Facility Permit Approved by the Local Enforcement Agency

No Wetlands Landfill Expansion v. County of Marin (2012) 204 Cal.App.4th 573

            The First District Court of Appeal ruled that a County Board of Supervisors did not need to hear an appeal of a decision to certify an EIR for modifications to a solid waste facility permit approved by the County’s local enforcement agency.

The Redwood Landfill is an existing landfill located in northern Marin County.  In 1999, the landfill operator applied to revise the landfill’s solid waste facility permit.  The application sought to expand the landfill’s capacity and to adjust landfill operations.  Marin County Environmental Health Services (EHS), the local permitting agency under State law, prepared and certified the Final EIR.  The petitioners tried to appeal that decision to the County Board of Supervisors.  The county rejected the appeal because EHS was the final decision-maker.  In December 2008, EHS approved the permit amendments.  The petitioners sued.  The trial court ruled the county had erred by rejecting the appeal to the Board of Supervisors.  The trial court did not reach the merits with respect to the adequacy of the EIR.  The county and applicant appealed.

            The Court of Appeal reversed.  EHS was lead agency as the designated local enforcement agency under the California Integrated Waste Management Act.  As such, its decision to certify the EIR was not appealable to the Board of Supervisors.  Public Resources Code section 21151, subdivision (c), provides that, if an EIR is certified by a non-elected decision-making body within a local lead agency, then that certification may be appealed to the local lead agency’s elected decision-making body.  That section did not apply, however, because EHS was a separate, distinct entity vested with authority over the permit and, as such, EHS had no elected decision-making body.  The trial court erred in directing the Board of Supervisors to consider the appeal.

            The county and applicant asked the Court of Appeal to reach the merits of the petitioners’ attack on the EIR.  The Court of Appeal declined, and sent the case back to the trial court to be heard on the merits.

Sixth District Court of Appeal Upholds a City’s Economic Infeasibility Basis for Rejecting Alternatives Involving Retaining Ownership of a Mansion

The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603

The Sixth District Court of Appeal ruled that, in a project involving restoration and sale of an historic mansion, the city had a sufficient basis for rejecting as economically infeasible alternatives involving retaining ownership of the mansion. 

The Flanders Mansion is an historic, 1920s-era Tudor Revival residence.  The City of Carmel-by-the-Sea owns the mansion.  The site is surrounded by a 35-acre nature preserve, also owned by the city.  The city certified an EIR and approved the sale of the mansion in view of the substantial cost of implementing necessary repairs.  The Foundation sued.  The trial court granted the petition.  Both sides appealed.

First, the Foundation argued the EIR did not contain an adequate analysis of potential future uses of the mansion in light of the Surplus Lands Act.  Under that statute, when a local agency wishes to dispose of surplus property, the agency must offer to sell or lease the property to other agencies for use as affordable housing or for park purposes before the property can be sold to a private party.  The EIR recognized the sale of the property would be subject to the act.  The Foundation argued, and the trial court agreed, that the EIR was deficient because it did not analyze the impacts of potential uses for the property authorized under the act.  That was so because an agency buying under the act would not be subject to mitigation measures or conservation easements adopted by the city when it approved the sale.  The Court of Appeal disagreed, holding that the city had authority to require, as conditions of sale, adherence to these measures and easements.  Moreover, the city did not have to analyze the impacts of using the mansion as affordable housing because the record supported the city’s conclusion that this use was not reasonably foreseeable in view of the high cost of rehabilitating the mansion and complying with adopted mitigation measures.

Second, during the CEQA process, a commenter asked the city to consider reducing the size of the parcel sold with the mansion.  The Court ruled the Final EIR’s response was inadequate.  Reducing the size of the parcel would also reduce one of the project’s significant and unavoidable impacts:  a reduction in public parkland.  The Final EIR had not provided a complete response to this proposal.

Third, the Foundation argued the city erred by failing to include an economic feasibility analysis in the EIR.  That analysis was prepared by a real-estate consultant to address the economic feasibility of the various alternatives analyzed in the EIR.  The Court ruled the city could rely on information in the record in making its feasibility determinations, regardless of whether that information appeared in the EIR itself.

Fourth, the EIR analyzed alternatives focusing on restoring and leasing the mansion for residential or non-residential use, or doing nothing (no project).  All these alternatives were environmentally superior to the proposed project.  The city rejected them, however, as economically infeasible, citing the consultant’s feasibility report.  The issue for the Court was whether this report constituted substantial evidence supporting the city’s decision.  The Court ruled that it did.  The report estimated that restoration would cost $1.4 million, and lease payments would not enable the city to recoup this cost for many years.  Selling the mansion would recover these costs, however, because the appraised value of the restored mansion was estimated at $4 million.  Doing nothing meant the city would incur ongoing maintenance costs, with no revenue to cover them.  Under such circumstances, the city acted within its discretion in rejecting these alternatives.

Finally, the Court ruled that substantial evidence supported the city’s adopted statement of overriding considerations.  The city acted within its discretion in deciding to sell the mansion, subject to mitigation measures and easements requiring its sensitive restoration.  Although the city could have retained ownership of the restored the building (alternatives the city rejected as infeasible), that did not mean the city could not cite restoration in its list of project benefits, even if the city intended to sell the restored mansion.

Third District Court of Appeal Strikes Down Negative Declaration Prepared for a County’s Oak Woodland Fee Program

Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156

The Third District Court of Appeal struck down negative declaration prepared for El Dorado County’s oak woodland fee program, rejecting the county’s attempt to tier off the program EIR prepared for its General Plan. 

In 2004, El Dorado County certified a program EIR and adopted a general plan.  The program EIR acknowledged that development under the new general plan would have significant impacts on oak woodland habitat.  The plan included a policy to develop an integrated natural resources management plan.  The plan had two options to protect woodlands:  “Option A” required adherence to canopy retention standards and replacing woodland habitat at a 1:1 ratio; and “Option B” required payment of an in lieu fee into the county’s integrated plan’s conservation fund.  Pending completing of the integrated plan, the county required project developers to mitigate the loss of oak woodland habitat through only Option A.  In 2008, the county adopted an oak woodland management plan. The purpose of the management plan included developing the Option B fee program and creating a foundation for the oak woodland conservation portion of the integrated plan. Development of the management plan required mapping existing oak woodlands and identifying conservation priorities. Certain criteria were used to prioritize areas with the highest biological value. Valley oak woodland was designated as sensitive habitat.  The plan also included oak woodland corridors for wildlife.  To analyze the environmental effects of the management plan, the county prepared an initial study and negative declaration that tiered from the 2004 program EIR.  The petitioners challenged this approach, arguing an EIR was required.  The trial court denied the petition.  The petitioners appealed.

The county argued the oak woodland management plan and Option B fee program were encompassed in the 2004 program EIR.  The Court disagreed, holding that the 2004 program EIR did not encompass the oak woodland management plan and Option B fee program.  The county had to make a number of judgment calls regarding the details of the fee program, and the general plan and program EIR had not considered or analyzed these details.  First, the 2004 program EIR and general plan did not differentiate between oak species. The management plan, however, focused on valley oaks to the exclusion of other oak species.  Second, the 2004 program EIR did not determine the measurement metric for conservation of oak woodlands to be used under Option B; yet, the choice of one metric versus another would alter the fees required under the Option B fee program.  Third, the 2004 program EIR did not set the fee rate to be paid if a project applicant elected to mitigate under Option B.  Although preservation programs funded by impact fees can be appropriate mitigation, the program must still, at some point, undergo CEQA review.  Fourth, the county’s 2004 program EIR had not specified how fees collected under Option B should be used to preserve oak woodlands. The program EIR emphasized the importance of maintaining connectivity among preserved oak woodlands, yet the county deferred the issue of connectivity until after other elements of the integrated plan could be established.  As a result, the Option B mitigation approach differed from the 2004 program report’s emphasis on the protection of connectivity between woodland habitats.

The Court concluded the record supported a fair argument that the oak woodland management plan and Option B fee program could have a potentially significant effect on the environment. While the 2004 program EIR determined impacts would remain significant even with mitigation, the negative declaration for the management plan concluded cumulative impacts would be less than significant.  The county argued there would be no greater adverse environmental effect than already anticipated in the 2004 general plan and program EIR. The Court rejected this argument, noting that, prior to adoption of the management plan, oak woodlands were required to be preserved at a 1:1 ratio on-site under Option A; that was no longer true under Option B.  For this reason, the county had to prepare an EIR.

RMM Hikes in the Sutter Buttes for Spring Outing with the Middle Mountain Foundation

For the firm’s spring outing, attorneys and staff of Remy Moose Manley, LLP recently hiked in the Sutter Buttes. The Sutter Buttes are a unique cluster of inactive volcanoes isolated in the Sacramento Valley. The hike through this beautiful area was led by Joe Ruesser, a guide from the Middle Mountain Foundation. Sites included spectacular vistas, wildflowers, golden eagles and a large herd of feral Barbary Sheep—a species of caprid native to North Africa.

The Middle Mountain Foundation was formed in 1989 with the purpose of educating the general public in the relevance and importance to society of natural and cultural resources and to encourage preservation, understanding, and good stewardship of such resources. To further these purposes, the Foundation focuses on findings ways for the public interest and private land to converge for the benefit of all.

Through contractual agreements with private landowners, Middle Mountain Foundation has created numerous learning opportunities within the Sutter Buttes , typically as guided hikes for the public. MMF works with many entities, including local counties, state agencies and national land trusts. MMF encourages land protection easements, which compensate private landowners for development rights, to protect private lands in the Sutter Buttes.

The Middle Mountain Foundation takes its name from that given to the Sutter Buttes by the native Maidu people. The translation to English is “The Middle Mountain.” The Buttes played an important role in the spiritual lives of the Maidu, and evidence of their past presence in the range can still be found today in the form of grinding stones and other cultural resources.

Participants in the spring outing all agreed hiking in the Sutter Buttes was an excellent way to spend a sunny spring day.

More information on the Middle Mountain Foundation can be found here: http://www.middlemountain.org

Fourth District Court of Appeal Holds That Irrigation District Can Rely on a Previous Negative Declaration and Does Not Need to Perform Subsequent Environmental Review When Making Certain Updates to Water Distribution Regulations

James A. Abatti et al., v. Imperial Irrigation District (4th Dist. April 26, 2012)      Cal.App.4th              (Case No. D058329)

Factual and Procedural Background

In 2006, the Imperial Irrigation District adopted a resolution related to a plan for the distribution of water in the event of a water shortage.  Concurrently with its adoption of a resolution, the District adopted a negative declaration in which it concluded that the distribution plan would not have a significant effect on the environment.  In 2007, the District adopted regulations implementing the distribution plan.  There were no challenges to either the resolution adopting the plan or to the initial regulations implementing the plan.

In 2008, the District adopted additional regulations that revised the 2007 regulations. Concurrently with the 2008 regulations, the District adopted an environmental compliance report that concluded the 2008 regulations did not warrant further environmental assessment under CEQA.  The District relied on Public Resources Code section 211166 and CEQA Guidelines section 15162, which provide limitations on the necessity for subsequent environmental review under certain circumstances.  Section 21166 provides that once an agency prepares an EIR, no EIR shall thereafter be required for the project unless certain circumstances occur, such as substantial changes to the project or to the circumstances under which the project is being undertaken.  Guidelines section 15162 provides a similar limitation on subsequent environmental review following the agency’s adoption of a negative declaration. 

Appellants, owners of agricultural land in Imperial County, filed a petition alleging that the District failed to comply with CEQA in adopting the 2008 regulations.  The trial court denied the petition, holding there was substantial evidence to support the District’s determination that the adoption of the 2008 regulations did not require additional CEQA review.  According to the trial court, the project being evaluated here (the 2008 regulations) included the 2007 regulations and there was substantial evidence to support the District’s determination that there had been no changes in the project or in the surrounding circumstances since the adoption of the 2007 regulations that warranted additional review under section 21166.  The court found the 2008 regulations simply served to clarify an omission made in the 2007 regulations – that the District could limit new industrial contracts to less than the contract amount if appropriate, and notably, this was a limitation on water deliveries.  The change to the regulation was not an expansion of water distribution rights as appellants had asserted.  The decision was appealed and the appellate court affirmed.      

Appellate Jurisdiction

The first issue addressed by the appellate court was whether it had jurisdiction over the appeal in light of the fact that appellants dismissed several causes of action without prejudice prior to the entry of judgment on the CEQA causes of action.  Under the final judgment rule, an appeal cannot generally be taken from a judgment that fails to complete the disposition of all the causes of action between the parties.  The court held that claims that have been dismissed, with or without prejudice, do not remain pending within the meaning of the final judgment rule unless there is a stipulation between the parties facilitating the future litigation of the dismissed claims, such as an agreement tolling the statute of limitations. Here, there was no such stipulation so the court was able to exercise jurisdiction. 

CEQA Claim

The court first addressed the appellants’ argument that Guidelines section 15162 was invalid because it improperly purports to extend section 21166 to negative declarations.  Section 21166 mentions only EIRs and not negative declarations.  Guidelines section 15162 has been held to be a valid regulation that implements the principles of section 21166.  (Benton v. Board of Supervisors (1991) Cal.App.3d 1467, 1479-1481).  Appellants argued, however, that Benton was wrongly decided.  The court disagreed and held that section 15162 validly implements the principles contained in section 21166.  The court agreed with Benton that section 15162 is valid because it furthers the purpose of section 21166, notwithstanding that the text of section 21166 refers only to EIRs. Therefore it held that section 15162 is valid when applied to cases, such as this, in which an initial negative declaration was prepared. 

Appellants also argued that, even if section 21166 applied, the District was required to prepare an EIR due to the significant changes in the 2008 regulations.  The court rejected this argument as well, finding that there was substantial evidence to support the District’s determination that the adoption of the 2008 regulations did not constitute a substantial change to the Project requiring additional environmental review. After reviewing the respective regulations, the court found the 2008 regulations did not substantially increase the priority preference that industrial users of water would receive over agricultural users in times of shortage, as appellants had alleged.  Its view of the 2008 regulations was that they made only a minor change to the 2007 regulations. The 2008 regulations, which allowed the apportionment of water to existing users based on “past use” and the apportionment of water to new users based on “anticipated use” is one that actually limited water delivery to future industrial users from the amounts they would have received under the 2007 regulations and was not a substantial change requiring subsequent environmental review.  Therefore, the court held that no further environmental review was required and affirmed the trial court’s decision to deny the petition.

Conclusion

This case confirms the holding in Benton that section 21166 allows a public agency to forego subsequent environmental review under certain circumstances regardless of whether the preceding environmental review document was an EIR or a negative declaration.  Unless the specific events described in Public Resources Code section 21166 or Guidelines section 15162 have occurred, an agency does not need to conduct further review when making minor changes to a project if an EIR or negative declaration has already been completed. Although the court does not expressly state what satisfies the “substantial changes” standard requiring subsequent review under CEQA and CEQA Guidelines, the case nonetheless provides useful guidance regarding the limits of the provisions and helps clarify when the need for subsequent review has been triggered.

First District Determines Local Land Use Ordinance Does Not Violate Map Act and Properly Characterized Certain Approvals as Ministerial Acts Exempt from CEQA.

Sierra Club v. Napa County Bd. of Supervisors (1st Dist. April 20, 2012) __Cal.App.4th__ (Case No. A130980)

Sierra Club challenged an ordinance adopted by the Napa County Board of Supervisors clarifying lot line adjustments. Sierra Club argued the ordinance violated the Subdivision Map Act (Map Act) and CEQA. The appellate court disagreed, rejecting Sierra Club’s facial attack on the ordinance and upholding the county’s interpretation that lot line adjustments could be ministerial approvals and therefore exempt from CEQA.

Background and Procedure

In 1976, amendments to section 66412 of the Map Act exempted from the act any lot line adjustment between two or more adjacent parcels. Thus, land could be taken from one parcel and added to an adjacent parcel, but no additional parcels could be created. This exemption was later restricted to four or fewer existing adjoining parcels. This amendment also required lot line adjustments to be approved by the local agency or advisory agency. Further, the agency’s review was limited to a determination of whether the parcels resulting from an adjustment conformed with the local general plan, any applicable specific or coastal plan, and any zoning or building ordinances.

In 2002, Napa County revised its local ordinance governing lot line adjustments to reflect the amendments limiting the scope of section 66412. The revised ordinance also prohibited lot line adjustments that transformed non-building parcels into buildable ones. The ordinance did not comment on whether sequential adjustments affecting four or fewer parcels would be permitted.

Around 2007, Napa County addressed this issue, as it had pending applications from one owner for lot line adjustments affecting 16 contiguous parcels. Each application affected only four parcels, but were sequential in that a lot adjusted under one application was further adjusted under a following application. Napa County determined some counties prohibited this approach to lot line adjustments while others required a waiting period between each application.  A final option would be to allow all of the application to be processed without a waiting period. The Board directed that an ordinance be prepared addressing sequential applications for lot line adjustments.

In 2009, a draft ordinance was presented to the Board that distinguished between major and minor lot line adjustments. Major adjustments depended on discretionary approval subject to CEQA, while minor adjustments were considered ministerial and outside CEQA’s purview. The final ordinance adopted by the county continued the existing administrative practice of allowing lot line adjustments impacting four or fewer parcels to re-adjust lots included in a prior application if the prior adjustments had been completed and recorded. Approval of these adjustments remained characterized as ministerial acts not subject to CEQA. The Board determined approval of the ordinance itself was exempt from CEQA based on a class 5 categorical exemption and the “general rule” exempting actions with no possibility of adverse impact to the environment (CEQA Guidelines, § 15061(b)(3)).

Sierra Club challenged the approval of the ordinance, claiming it violated the Map Act’s lot line adjustment exemption and violated the Map Act and CEQA by classifying adjustments as ministerial. Sierra Club requested that the county stipulate to a court order extending the time to prepare the administrative record. The county agreed and the court ordered the deadline extended. The county later argued that Sierra Club failed to effect summons within 90 days as required by section 66499.37 of the Map Act. The trial court held that the county’s stipulation to extend time to prepare the administrative record was a general appearance, and therefore, the county waived any irregularities in the service of summons. The trial court rejected Sierra Club’s other challenges to the ordinance, and Sierra Club appealed.

Sierra Club’s Action Not Time-Barred

The appellate court agreed with the trial court that Sierra Club’s action was not time-barred.  The appellate court determined that the county made a general appearance when it agreed to the stipulation extending the time to prepare the administrative record. California Code of Civil Procedure section 1014 lists acts that constitute an appearance, but the appellate court noted this list is not exclusive. The determining factor is whether the defendant takes a part in the action and in some manner recognizes the authority of the court to proceed. In this case, the county clearly acknowledged the trial court’s authority to proceed when it stipulated to the order granting Sierra Club an extension. As a result of this appearance, the county waived all irregularities in service.

Compliance with the Map Act

Sierra Club argued the county’s ordinance violated the Map Act by circumventing its limited exemption for lot line adjustments. The appellate court interpreted this as an argument that section 66412 preempted the local ordinance, or that the local ordinance facially conflicted with this section.

The appellate court noted the difficult burden Sierra Club faced in making its facial challenge to legislation. Local land use regulations conflict with general laws and are void if the local legislation duplicates, contradicts, or enters an area fully occupied by the general law. The court determined Napa County’s ordinance did not conflict with section 66412, as the ordinance did not conflict with any of the criteria established by the Map Act for procedural exclusions of lot line adjustments.

Further, the court rejected Sierra Club’s argument that the county’s ordinance would reopen the loopholes closed by the amendments to section 66412. Specifically, the ordinance did not allow an unlimited number of lot lines to be adjusted at the same time. The ordinance required landowners to obtain approval of adjustments of no more than four adjoining lots at one time and record the deeds reflecting those adjustments before another application could be processed. The court determined that if the legislature had intended to remove all sequential lot line adjustments from the section 66412 exemption, it could have used language to make this intention clear.

Application of CEQA to Sequential Lot Line Adjustments Under County Ordinance

Sierra Club argued that approval of sequential lot line adjustments is a discretionary action subject to CEQA. Approval of discretionary projects requires the exercise of judgment or deliberation, while ministerial projects involve little or no personal judgment by the relevant public official. The public official merely applies the law to the facts presented.

The ordinance classified lot line adjustments as ministerial and not subject to CEQA except where such adjustments required approval of a variance or were processed concurrently with a related application for a use permit or other discretionary approval. Otherwise, if an application complies with 12 specific standards under the ordinance, a public official must accept the application. The court held fixed approval standards left officials with no ability to exercise discretion to reject or shape the project in any way. Therefore, approvals of lot line adjustments under the ordinance that met these criteria were appropriately classified as ministerial.

Conclusion

This case offers an important civil procedure reminder that if a party makes a general appearance before a court, it waives the ability to later challenge sufficiency of service. Stipulating to a court order extending the deadline for filing the administrative record in a CEQA action was characterized as a general appearance in this case. In addition, the case demonstrates the heavy burden petitioners face when attempting to argue a local land use regulation conflicts with a general law. Finally, the case reiterates past precedent distinguishing discretionary acts subject to CEQA and ministerial acts falling outside the jurisdiction of the act.

Fifth District Rules Administrative Record Must Include Audio Tapes of Public Proceeding Where No Transcript Is Available, As Well As Certain Materials Held by Primary Consultants

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.