First District Court of Appeal Holds City May Recover Some Record Preparation Costs Where Petitioner Elected to Prepare the Record

Under Public Resources Code section 21167.6, petitioners may elect to prepare the administrative record in a CEQA proceeding. Petitioners Coalition for Adequate Review and Alliance for Comprehensive Planning chose to prepare the record of proceedings in this case. The court held the City could recover most of its reasonable record preparation costs even though petitioner had elected to prepare the record. Coalition for Adequate Review v. City and County of San Francisco (Sept. 15, 2014) Case No. A135512.

The trial court held on the merits in favor of the City. The City then filed a memorandum of costs, seeking $64,144 for the administrative record, a professional messenger, and service. The City had certified the record in part, claiming it was incomplete due to petitioners’ failure to include statutorily required documents. The City then added these documents to the record. The trial court concluded that because it was the City that had sought to supplement the record, the City should bear that cost. The court further held that petitioners’ discovery requests had not been extraordinary and were not the but-for cause of the City’s costs, and that granting the City’s cost request would chill future petitioner litigation. The appellate court reviewed the issue de novo.

The issue before the court was whether petitioners’ election to prepare the record precluded an award of record preparation costs to the City. The court held that a petitioner’s election to prepare the record does not preclude a public agency from recovering supplemental record preparation costs when incurred to ensure a statutorily complete record. Section 21167.6, subdivision (b)(2) contains no ipso facto prohibition on the recovery of record preparation costs by a public agency. The court stated that in order for an agency to recover costs, circumstances need not be extraordinary, as was the case in St. Vincent’s School for Boys, wherein the city was required at petitioner’s request to locate more than 58,000 pages of documents. A public agency need not put itself at risk of a statutorily incomplete record, the court opined.

The court disagreed that its holding would have a chilling effect on CEQA challenges, as section 21168 expressly provides for the prevailing party to recover costs of record preparation. Furthermore, the parties, and not the public agency, pay the costs, and thus public monies are not used to fund CEQA challenges brought by private parties.

The court then delved into the reasonableness of specific cost items. It disallowed paralegal costs related to the supplemental record where those costs were expended to ensure “completeness” of the record. Public agencies face this chore every time a petitioner elects to prepare the record, and to allow potentially sizeable recoveries for the task would undermine the statutory scheme for controlling the costs of record preparation. The court found that labor costs of assembling the record, production of excerpts of the record, messenger fees, overnight service fees, and the city’s copy of the record prepared by petitioners were all potentially recoverable, and remanded these costs to the trial court for a reasonableness determination. Planning department labor costs to locate documents provided to petitioners, however, were not recoverable here as they “did not approach the egregious abuse the occurred in St. Vincent’s School.”