Tag: Administrative Record

Fourth District Holds that Agencies May Not Destroy, But Rather Must Retain All Writings Required by CEQA’s Administrative Record Statute.

The Fourth District Court of Appeal in Golden Door Properties, LLC v. Superior Court of San Diego County (2020) 53 Cal.App.5th 733 (“Golden Door III”) held that the broad and inclusive language in Public Resources Code section 21167.6 requires lead agencies to retain all project-related writings and e-mails during the CEQA statute of limitations period or any CEQA litigation. The court issued a writ of mandate directing the San Diego County Superior Court to permit petitioners to conduct discovery against San Diego County to recover unlawfully deleted e-mails for the record of proceedings. The court also ruled on matters related to mootness, discovery in CEQA cases, the common interest doctrine, and the Public Records Act.

BACKGROUND

San Diego County’s E-mail Retention and Deletion Policy

In June 2008, the County of San Diego (“County”) adopted an administrative policy that provided for the automatic and permanent deletion of e-mails after 60 days, except for e-mails identified by e-mail users as “official records.” E-mails identified as “official records” must be retained for at least two years, and e-mail users must classify qualifying e-mails as “official records” within 60 days of creating them. E-mails considered “official records” under the policy include those: “made for the purpose of disseminating information to the public”; “made and kept for the purpose of memorializing an official public transaction”; “required by law to be kept”; or, “necessary and convenient to the discharge of a County officer’s official duties and…made or retained for the purpose of preserving its informational content.” The policy also excluded “preliminary drafts, notes, or inter- or intra-agency memoranda not kept in the ordinary course of business and the retention of which is not necessary for the discharge of County’s officer’s official duties,” from the definition of an “official record.”

The Newland Real Estate Project & Procedural Background

In January 2015, Newland Real Estate Group (“Newland”) proposed a mixed-use development project (“Project”) consisting of 2,134 new residential units and 81,000 square feet of commercial development. Petitioner, Golden Door Properties (“Petitioner” or “Golden Door”), owned and operated a 600-acre spa and resort near the proposed project site. In April 2014, Golden Door had warned the County it would oppose Newland’s proposed Project—as it had previously done with a similarly proposed project in 2009—citing environmental concerns and general plan violations.

In December 2016, while the County processed Newland’s Project application, Golden Door sued the Vallecitos Water District (“District”), Newland, and the County. The suit alleged that the District lacked adequate water supplies to support the Newland Project, which would result in adverse groundwater overextraction. To defend against that litigation, the District, the County, and Newland, entered into a “Confidential Joint Defense Agreement.”

In June 2017, the County released a draft environmental impact report (EIR) for the Project. Shortly thereafter in July 2017, Golden Door submitted a Public Records Act (PRA) (Gov. Code, § 6250 et seq.) request seeking the draft EIR’s technical analyses. The County refused production on grounds that only consultants had possessory rights to the documents. Golden Door submitted a second PRA request in October 2017, which sought copies of the County’s consultant contracts and “all documents and communications in the County’s possession” pertaining to the Newland Project. In response, the County produced, among other documents, only 42 emails that spanned the 60-day period between September through October 2017. When questioned about e-mails spanning from the entire three-year environmental review process, the County explained its 60-day automatic e-mail deletion program, and refused to produce copies of deleted e-mails that may still have been in consultants’ possession.

On June 18, 2018, the County released a second draft EIR for the Project. The following day, Petitioner sued the County once again, alleging that it: (1) used unauthorized consultants to prepare the EIR’s technical studies; (2) failed to executed a consultant memorandum of understanding (MOU) in accordance with County CEQA guidelines; (3) improperly destroyed official records; and (4) improperly withheld records under the PRA. In July 2018, the County and Newland entered into another “Confidential Joint Defense Agreement.” That same month, the trial court issued a temporary restraining order directing the County to stop deleting project-related emails.

On September 26, 2018, the County’s Board of Supervisors approved the Newland Project and certified the final EIR. In anticipation of potential CEQA litigation, the County and Newland entered into yet another “Confidential Joint Defense Agreement” to defend against potential claims challenging the County’s Project approvals. In October, two CEQA lawsuits were subsequently filed against the County, including one by Petitioner, Golden Door. The superior court consolidated the two CEQA cases, along with Golden Door’s June 2018 PRA action against the County.

In January 2019 and thereafter, Golden Door conducted civil discovery against the County, Newland, and two of the County’s environmental consultants. The County produced nearly 6,000 documents, but partially refused discovery requests that sought documents pertaining to the County’s compliance with Golden Door’s initial PRA requests. Golden Door also attempted to obtain the County’s deleted e-mails from Newland and subpoenaed the consultants for other Project-related notes, e-mails, studies, and agreements, but both parties opposed the requests.

Golden Door subsequently filed motions to compel discovery and to require the production of privilege logs for the withheld documents. A discovery referee was appointed to resolve the discovery disputes and ultimately issued several rulings in favor of the County, Newland, and the environmental consultants. The superior court adopted the referee’s recommendations and the various plaintiffs filed the first of three petitions for writ of mandate with the Court of Appeal. The appellate court denied the petition and plaintiffs sought Supreme Court review. The Supreme Court directed the Court of Appeal to show cause as to why the first petition should not issue. The appellate court did so and filed an additional order to show cause for the second petition, thereby consolidating the two writ proceedings.

In October 2019, the CEQA plaintiffs filed a motion to augment the record by seeking to add documents the County omitted from the record, and other material plaintiffs had submitted to the County prior to its approval of the Project and certification of the EIR. The superior court “mostly” denied the motion, allowing the addition of only certain documents. Thereafter, Plaintiffs filed their third writ petition in the Court of Appeal.

On March 3, 2020, the County’s voters rejected the Newland Project in a referendum election. The County Board of Supervisors rescinded the Project’s General Plan Amendment, Specific Plan, zoning changes, and other approvals in April 2020. However, the Board did not vacate its certification of the Final EIR or its approval of the Project’s tentative map. Though Newland ultimately withdrew the Project, the Court of Appeal rendered a decision given the likelihood of the reoccurring e-mail retention issue.

COURT OF APPEAL DECISION

Mootness

As a threshold matter, the Fourth District considered whether the writ petitions were moot because the County had rescinded some, but not all of its Project approvals. The appellate court held that the petitions were not moot because the County did not rescind all project approvals and counsel for Newland indicated that the Project will likely return in some form, perhaps in reliance on the certified Final EIR and tentative map. The court also explained that even if these issues were moot, it had discretion to retain the case because it presented an issue of broad public interest that is likely to reoccur, the parties’ controversy may reoccur, and the County’s e-mail deletion policy remained a material issue of statewide significance.

The County’s E-mail Retention Policy

The Fourth District’s analysis began by interpreting the scope of requisite administrative record documents contemplated by Public Resources Code section 21167.6. The section requires that the record include any document that “ever came near a proposed development or to the agency’s compliance with CEQA in responding to that development.” Moreover, section 21167.6, subdivision (e) uses very broad and inclusive language, which provides that records “shall” include “correspondence” submitted to and transferred from the respondent agency regarding the Project or CEQA compliance, as well as all “internal agency communications” relating to the Project or CEQA compliance.

The court further found that section 21167.6’s broad mandate comports with CEQA’s intent of providing information and disclosure. A complete record is essential for courts to fulfill their role in assuring that an agency’s determinations are lawful under CEQA and supported by substantial evidence. Based on the plain language of the statute, the court held “that a lead agency may not destroy, but rather must retain writings section 21167.6 mandates for inclusion in the record of proceedings.” The court also found that the trial court erred in finding that the County’s e-mails were extra-record evidence; rather, the e-mails plaintiffs sought to include were record evidence contemplated by section 21167.6.

The appellate court also rejected the discovery referee’s finding that the County’s e-mail destruction policy was lawful. The court found that the referee had inappropriately equated non-official emails with preliminary drafts in determining that “[n]on-official emails and other preliminary drafts” are not included under section 21167.6. The court noted that e-mails are a method of communication, while preliminary drafts describe content. Section 21167.6, subdivision (e)(10) “expressly requires certain preliminary drafts—namely, ‘any drafts of any environmental document, or portions thereof, that have been released for public review’—to be included in the record of proceedings.” In contrast, administrative drafts of EIRs, draft staff reports, and other similar preliminary documents that preceded those circulated for public review are not to be treated as part of the record of the agency’s proceedings. Similarly, agencies need not include e-mails in the administrative record that are irrelevant to a project or a project’s CEQA compliance (i.e., email equivalents to “sticky notes, calendaring faxes, and social hallway conversations” are not within the scope of section 21167.6, subdivision (e) and do not need to be retained).

While the Fourth District held that under the County’s e-mail retention and deletion policy the requisite document should have been retained for at least two years, the court did not reach the issue of how long other agencies must keep their e-mails before destroying them. The court’s opinion does not hold that e-mails must be kept “in perpetuity”—rather, the CEQA statute of limitations and a final judgment serve as relevant considerations to assessing when e-mails may be destroyed.

Discovery in CEQA Litigation

The Fourth District overturned the discovery referee’s denial of plaintiff’s motions to compel discovery against Newland and the County’s consultants. The court held that plaintiffs were not inappropriately attempting to enlarge the record; they were properly seeking discovery of documents that should have originally been included.

Because section 21167.6 is mandatory and broadly inclusive, the court held that discovery to obtain record components should largely be unnecessary. However, in cases such as these where documents may have been wrongly excluded from the administrative record, discovery is possible in a CEQA proceeding.

The Common Interest Doctrine

The County’s objections to Golden Door’s discovery requests cited the common interest doctrine. Golden Door’s subsequent May 2019 motion to compel asked the County to produce a privilege log. The County’s initial privilege log identified 3,864 withheld documents, and amended privilege log identified 1,952 withheld documents.

Golden Door asserted that the common interest doctrine did not apply to the documents shared between the project applicant and the county prior to October 10, 2018, the date the county board adopted the last project approval. The court disagreed, holding that the referee correctly determined the common interest doctrine applied pre-project approval. The court distinguished Ceres for Citizens v. Super. Ct. (2013) 217 Cal.App.4th 889, by pointing out that Golden Door had already sued the County twice prior to Project approval, each time seeking orders to kill the Project, thereby creating a common interest between the County and the Newland to defend the Project pre-approval.

The court explained that entities with common legal interests may share attorney-client privileged information without waiving that privilege. For these reasons, the Confidential Joint Defense Agreement between the County, the District, and Newland was proper because they were entered into after litigation had commenced.

Public Record Act Exemptions

Lastly, the Fourth District considered whether the County appropriately relied on the “preliminary draft exception” and the “deliberative process privilege” to withhold approximately 1,900 documents from discovery. Under the PRA’s preliminary draft exception, agencies need not disclose preliminary drafts, notes, or inter/intra-agency memoranda that are not retained by the public agency in the ordinary course of business if the public interest in withholding those records outweighs the public’s interest in disclosure.  Similarly, the deliberative process privilege applies to the mental processes by which an agency reached a given decision, which includes the substance of conversations, discussions, debates, deliberations, and materials reflecting advice, opinions, and recommendations by which government policy is processed.

Here, the court overturned the referee’s recommendation by finding that the declaration in support of the County’s privilege log lacked sufficient detail to justify withholding over 1,900 documents. The declaration failed to discuss individual documents and how the exceptions apply—rather, the County only discussed the 1,900 documents as one “enormously large unified group.” Moreover, while the court recognized the difficult balance the County must strike in determining what to release or withhold, the County here only provided “broad conclusory claims” that “merely echo[ed] public policies underlying claims of privilege generally.” The court held that the County had failed to carry its burden of establishing that the public interest in withholding the documents clearly outweighed the public interest in disclosure.

Remedy

The court rejected plaintiff’s contention that the County’s inadequate record requires a judgment on the merits as premature. On remand, the plaintiffs are allowed to complete discovery. The court also granted the consolidation of the writ petitions and overturned many of the discovery referee and superior court’s findings. The court directed the trial court to vacate its order denying Golden Door’s motion to augment the record because the County’s long-standing e-mail retention and deletion policy is unlawful. Finally, once discovery is complete, Petitioner should be afforded a reasonable period of time to augment the record.

MODIFIED DECISION ON DENIAL OF REHEARING

On August 25, 2020, the Fourth District issued an order denying three petitions for rehearing filed by Golden Door, the County, and Newland, and modifying the court’s July 30, 2020 opinion. Notably, the order expanded the original opinion’s analysis of the “common-interest”/“joint defense” doctrine. The court reiterated that the discovery referee properly applied the doctrine to communications between the County and Newland because Golden Door’s Vallecitos and PRA lawsuits sought to “defeat” or “mortally wound” the Project before it had been approved. In a subsequent footnote, the court explained that the common-interest doctrine may keep the attorney-client and work-product privileges in-tact for the purposes of defending against those two lawsuits. However, that common interest does not absolve the County of its duties as a lead agency under CEQA.

– Mina Arasteh, Bridget McDonald

Second District Upholds Award for Costs Incurred by Agency in Taking Over Preparation of Administrative Record from Petitioner

In LandWatch San Luis Obispo County. v. Cambria Community Service District (2018)25 Cal.App.5th 638, the Second Appellate District ruled that the trial court acted within its discretion in awarding record-related costs to the respondent agency, even though the petitioner had elected to prepare the record, where the petitioner failed to prepare the record in a timely fashion.

In January 2014, the Cambria Community Services District approved an emergency water supply project. The district did not perform any environmental review under CEQA. LandWatch sued and elected to prepare the administrative record. LandWatch also sent the district a letter under the Public Records Act asking for the documents comprising the record. The district sent LandWatch the documents. A month later, the district informed LandWatch that additional documents had been identified, and that the district would provide them upon payment. Three months passed before LandWatch asked for the documents, at which point the district provided them, in April 2015. In August 2015, LandWatch produced a draft index to the record. The district responded by noting that the index was both over- and under-inclusive. That same date, the district produced its own index and certified the record it had prepared. LandWatch filed a motion to include additional documents post-dating the January 2014 approval date. The trial court ordered the district to certify an appendix consisting of the additional documents. Weeks passed and LandWatch did not prepare the appendix. The district wrote that it would prepare the appendix itself, after which LandWatch prepared its own competing appendix, which it lodged in February 2016, a month before the trial. The court accepted the district’s appendix, and rejected the one prepared by LandWatch. Following trial, the court denied the petition. The district filed a memorandum of costs seeking $39,000, including $4,000 for preparing the certified record, and $27,000 for preparing the appendix. LandWatch moved to tax costs. The trial court awarded the district $21,000 ($4,000 for preparing the certified record; $14,000 for preparing the appendix – half of the district’s requested amount; and $3,000 for other items). LandWatch appealed.

LandWatch argued that, because it had elected to prepare the record, the district ought not to recover any record-related costs. The court noted, however, that in electing to prepare the record, LandWatch was required to do so within 60 days. LandWatch missed this deadline. LandWatch argued the district was to blame for the delays. The court disagreed. The trial court, as trier of fact, had concluded otherwise—a determination to which the Court of Appeal must defer.

LandWatch argued the district ought not to recover costs associated with the appendix of post-approval documents because the district had resisted LandWatch’s efforts to augment the record with them. The court was unmoved. The trial court had ordered the preparation of the appendix at LandWatch’s insistence. “For LandWatch to now assert that the appendix is not part of the record to escape the costs it created is fanciful, if not perverse.” (Slip. Op. at pp. 7-8.)

The court also upheld the trial court’s awarding costs for the district’s court-call, copying and transcription costs. The court noted that the trial court had already reduced the costs as requested by LandWatch, or had ample basis for finding the costs to be reasonable.

Second District Holds that Failure to Lodge Administrative Record Barred Post-Trial Relief

In The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, the Second District Court of Appeal held that the mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b), do not apply where counsel fails to lodge the administrative record in a CEQA proceeding and receives a judgment denying the petition for writ of mandate.

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

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

Fifth District Court of Appeal Disagrees, in Part, with “Hayward Area Planning” Decision and Awards Costs for Record Preparation to Real Party in Interest

The Fifth District Court of Appeal, in a partially-published opinion, ruled on a cost award in Citizens for Ceres v. City of Ceres (2016) 3 Cal.App.5th 237. The court disagreed in part with the decision in Hayward Area Planning Association v. City of Hayward (2005) 128 Cal.App.4th 176 (“Hayward Area Planning”), and granted real party in interest’s request for the cost of preparation of the administrative record.

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

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

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

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

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

Fourth District Court of Appeals Finds an Addendum Cannot Cure an Inadequate Certified EIR

In Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256, the Fourth District Court of Appeal found that the city’s environmental impact report (EIR) failed to sufficiently analyze potential energy impacts and that the adoption of an addendum subsequent to EIR approval could not be considered in determining the EIR’s adequacy because it was not part of the administrative record. Therefore, the appellate court reversed the trial court’s ruling that the EIR was adequate when analyzed in tandem with the addendum.

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

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

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

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

Written by Sabrina S. Eshaghi

Reasonably necessary attorney and paralegal time recoverable as costs of preparing the record of proceeding

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

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

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

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

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

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

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

Analysis and Conclusion

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

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

First District Upholds Approval of Parkmerced Redevelopment Project in San Francisco

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

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

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

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

Fifth District Court of Appeal Holds “Common-Interest” Doctrine Cannot Apply to Protect Disclosures Between a Lead Agency and a Developer before Project Approval

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

Background

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

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

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

Court of Appeal’s Decision

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

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

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

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

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

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

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

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.