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

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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.

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

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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.

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

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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.

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

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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

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

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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.

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

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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.

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

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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.

Third District Finds Trial Court Erred by Taking Judicial Notice of Documents Outside the Pleadings When Ruling on a Demurrer

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Jamulians Against the Casino v. Iwasaki (3rd Dist. March 29, 2012 [modified April 26, 2012]) __Cal.App.4th__ (Case No. C067138)

Plaintiff association Jamulians Against the Casino (JAC) contested the execution of a 2009 settlement agreement between Caltrans and Jamul Indian Village. The agreement had resolved federal litigation between Caltrans and the Tribe over application of CEQA to the Tribe’s plans to upgrade an interchange.  JAC alleged the agreement itself was subject to CEQA. JAC argued Caltrans had committed itself in the agreement to granting a permit for the interchange upgrade.

JAC filed a petition for mandate, to which Caltrans demurred. The Tribe made a special appearance to quash summons based on sovereign immunity. The Tribe asserted it was an indispensable party. The trial court sustained Caltrans’ demurrer and dismissed the action. The trial court declined to rule on the Tribe’s motions. JAC appealed.

On appeal, the Third District invited supplemental briefing on the issue of whether the trial court exceeded the proper scope of judicial notice in taking provisions of the agreement into account that did not appear on the face of the petition. The appellate court determined that the trial court had erred when ruling on the demurrer.

When it ruled on the demurrer, the trial court took judicial notice of the entire agreement. The trial court determined the agreement “as a whole” defeated JAC’s interpretation of a portion of the agreement upon which JAC based its assertion that Caltrans had committed to approval; however, in its pleadings, JAC had only cited small portions of the agreement.

The appellate court rejected the trial court’s approach, stating that a demurrer tests the pleading alone.  A court cannot sustain a demurrer on the basis of extrinsic material not appearing on the face of the pleading, except for matters subject to judicial notice. While the existence of documents can be judicially noticed, the truth of the contents of documents may only be judicially noticed in limited circumstances, such as for orders, judgments, conclusions of law, or findings of fact. It was therefore inappropriate for the trial court to take judicial notice of the terms of an ordinary document, such as the agreement, submitted in support of the demurrer. Further, it was inappropriate for the trial court to interpret the terms of the agreement. The appellate court was concerned that this use of judicial notice could convert a demurrer into an incomplete evidentiary hearing. The agreement, as a whole, was not properly before the trial court, and a demurrer tests the sufficiency of a pleading alone. Based on these facts and reasoning, the appellate court reversed the trial court’s judgment.

The court also briefly discussed the issue of whether the Tribe was an indispensable party. The court noted that the designation of a party as indispensable is a discretionary determination requiring consideration of four relevant criteria: (1) the extent to which a judgment would prejudice the absent party; (2) the extent to which measures are available to mitigate any prejudice; (3) the ability of the court to address the issues in the absence of the party; and (4) the adequacy of the plaintiff’s alternate remedies if the action is dismissed. The appellate court declined to rule on this issue, stating appellate courts will not review an issue in the first instance that involves a trial court’s discretionary application of the law to the particular facts of a case.

This case may potentially increase the difficulty of prevailing on a demurrer where the contents of documents necessary to support the demurrer are not set forth in the pleadings. Other procedures, such as summary judgment or judgment on the pleadings, may become necessary to place certain documents before a court for review and interpretation and obtain the same result as a demurrer.

Third District Finds Trial Court Committed Non-Prejudicial Error When It Excluded Documents from Record Under the Deliberative Process Privilege, Upholds Revised EIR Against Other CEQA Challenges

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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.

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