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Posts Tagged ‘Administrative Record’

Reasonable Administrative Record Preparation Costs Awarded to Agency Where Plaintiff Elected to Prepare and Failed to do so within 60-Day Limit

Thursday, June 28th, 2018

In LandWatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638, the Second District Court of Appeals affirmed an agency may properly take over the preparation of the administrative record per Public Resources Code section 21167.6(b)(1) when petitioner elects to prepare and fails to do so within 60 days.

LandWatch San Luis Obispo County (LandWatch) filed suit against Cambria Community Services District (District) for alleged CEQA violations in approving an emergency water supply project on January 30, 2014. In its initial pleading of October 2014, LandWatch elected to prepare the administrative record. District provided the documents to Petitioners in November 2014. The next month, the District notified LandWatch of additional documents. LandWatch requested the documents in March 2015 and received them in April 2015.

LandWatch presented a draft administrative record index in August 2015. The District notified LandWatch the draft was over and under inclusive and, to avoid further delays in distribution of $4.3 million in grant fund awards, prepared and certified the record itself.

The trial court granted leave for LandWatch to include additional documents. However, LandWatch then failed to timely request the documents, stalling from December to February. This was problematic as the trial was set for March and the complete, certified administrative record was required to be filed before then.

The trial court denied LandWatch’s petition for a writ of mandate and the District sought costs from LandWatch for the cost of preparation of the administrative record, $4,299.01, and preparation of the appendix, $26,922.46. The trial court awarded the entirety of the first amount and half of the second amount, totaling $14,328.59. LandWatch timely appealed.

Relying on Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, the Appellate Court held that an agency is not prohibited from recovering costs for preparation of the administrative record where the petitioner initially elected to do so. Such a determination is made on a case-by-case basis and at the court’s discretion.

While the award of such costs is limited to those that are “reasonable” and “reasonably necessary,” so long as the trial court finds that it is not specifically prohibited, it is at the trial court’s discretion to award costs. Here, the Court found that the trial court’s award was “on the low side of reasonable” totaling only $1.77 per page. The trial court would have been “well within its bounds” to award more, especially where the 7,683-page appendix was erroneously requested by LandWatch. Finally, the Court allowed costs for court calls, copies, and transcription costs that were reasonable and not prohibited.

The Court affirmed the trial court award.

Key Point:

Any amount of delay in administrative record preparation past the 60-day limitation in Public Resources Code section 21167.6(b)(1) is “unreasonable delay” in which an agency may prepare the record and recover “reasonable” costs, at the discretion of the court, for doing so.

Second District Court of Appeal Rejects Challenge to CEQA-Exempt Lighting Project on Procedural Grounds

Thursday, April 13th, 2017

In The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, the Second District Court of Appeal addressed an appeal centered on challenge to the City of Los Angeles’ lighting project, and held that plaintiff’s attempt to invoke Code of Civil Procedure (“CCP”) section 473, subdivision (b) was improper due to insufficient evidence.

In September 2014, the plaintiff challenged the approval of a City of Los Angeles’ bureau of street lighting project’s use of light emitting diode replacement lights, which the City claimed was exempt from formal environmental review under CEQA. The plaintiff failed to lodge the administrative record as required pursuant to a stipulation. On July 8, 2015, the trial court denied the plaintiff’s request for a continuance because the record had not been lodged. The trial court also denied the plaintiff’s petition and complaint because the plaintiff could not support its arguments due to its failure to lodge the administrative record.

On August 26, 2015, the plaintiff moved to vacate the judgment under CCP section 473, subdivision (b), asserting that both discretionary and mandatory relief should be granted based on its attorney’s sworn affidavit in which he admitted neglect in failing to lodge the administrative record. The trial court denied discretionary relief because the plaintiff’s counsel’s mistake – failing to check to see if his assistant actually lodged the administrative record due to his hectic workload – did not rise to the level of excusable neglect. The trial court granted mandatory relief, however, finding that the mistake of plaintiff’s attorney deprived plaintiff of its day in court and explaining that it had ruled on the merits only because it was under the mistaken impression that the incomplete record had been lodged by plaintiff, when in fact it had been lodged by the City.

On appeal, the Second District Court of Appeal held that the trial court erred in granting the mandatory relief. The mandatory relief provision in CCP section 473, subdivision (b) only applies to a default, a default judgment, or a dismissal. In this case, the court found the mandatory relief provision did not apply. Plaintiff failed to present sufficient evidence to meet its burden of proof because it never lodged the administrative record.  The judgement was therefore on the merits and not a default, default judgment, or dismissal.

Key Point:

The Second District Court of Appeal found that the grant of mandatory relief under CCP section 473, subdivision (b) is improper when plaintiff fails to present sufficient evidence and does not meet the burden of proof.

Contents of an Administrative Record: Who is in “Control”?

Tuesday, May 22nd, 2012

Preparation of the administrative record for CEQA litigation is governed by Public Resources Code section 21167.6, subdivision (e).  In Consolidated Irrigation District v. The Superior Court of Fresno County, (2012) ___ Cal.App.4th_____, the court provided important guidance regarding the proper contents of the record and sets some limitations on an agency’s responsibility to respond to Public Records Act requests.

The court first considered whether the files of subconsultants retained to prepare an EIR for a lead agency are (1) “public records” that the lead agency must provide in response to a Public Records Act request and/or (2) part of the administrative record for purposes of CEQA litigation.  In both instances, the court looked to the contract between the lead agency and the primary EIR consultant and determined that the City’s “control” over the consultant was contractually limited and did not extend to the services performed by subconsultants.  Thus, for purposes of the Public Record Act, the subconsultant’s files were not “in the possession of the agency” and therefore did not need to be included in the City’s response to petitioner’s Public Records Act request.  For purposes of CEQA, the contract established that the subconsultant’s files were not owned, controlled or in the possession of the City.  The court held such files were not considered part of the record under Public Resources Code section 21167.6, subdivision (e)(10) which requires inclusion of documents “included in the …public agency’s files on the project….”

Importantly, however, the court did not establish a bright line rule that subconsultant files never qualify for inclusion in the record; if a subconsultant’s documents were made available consistent with CEQA’s requirements, such documents would properly be in the record (e.g., documents cited or referenced in the EIR and made available for public review).  In this case, where the subconsultant’s documents were not made available to the City, the court found that it was improper to compel production of such documents for inclusion in the record.

The court next considered whether the City was required to include transcripts of hearings and/or audio files of public hearings in the record.  Although transcripts are clearly “written” materials and should generally be included in the record, in this case the City had not prepared written transcripts of several hearings and therefore could not produce such documents. The court held that Public Resources Code section 21167.6, subdivision (e)(4)’s requirement that the administrative record include “[a]ny transcript or minutes” does not compel a lead agency to prepare transcripts that do not otherwise exist.  However, the court held that audio recordings of the hearings constitute “other written materials” under subdivision (e)(4) and therefore must be included in the administrative record if transcripts are not available.  The court explained that this broad interpretation of the words “written materials” best promotes CEQA’s purposes of accountability and informed self-government.

Finally, the court considered whether certain documents cited within a comment letter constitute “written comments received” by the agency and/or “written evidence submitted” to the agency and thus warrant inclusion in the record under section 21167.6, subdivisions (e)(6) and (e)(7).  As to the first issue, the court concluded that the term “comment” does not include documents cited to support the assertions made in the letter.  While these documents are considered evidence supporting the contentions in the letter, they “cannot be bootstrapped into the record of proceedings using the language in section 21167.6, subdivision (e)(6) that covers ‘written comments received.’”

As to the next issue, the court determined that “written evidence” has been “submitted to” a lead agency for purposes of section 21167.6, subdivision (e)(7) when the commenter has made the document readily available for use or study by lead agency personnel.  The court applied this test to four categories of “evidence”:

(1)   documents named in a comment letter and previously delivered to the City in connection with another project were made “readily available” for City personnel and therefore were part of the record under subdivision (e)(7);

(2)   documents named in the comment letter along with a reference to a general Web site through which the document could be located were too general in nature and would subject lead agency personnel to potentially time-consuming efforts to locate the specific Web page where the document is located; therefore, citations to general Web pages and home pages are not considered “readily available” to the City and are not part of the record under subdivision (e)(7);

(3)   documents named in a comment letter along with a citation to the specific Web page or URL containing the document were made “readily available to the City personnel” and therefore are part of the record under subdivision (e)(7);

(4)   documents named in comment letters without a citation to a Web site or Web page are too difficult to identify or obtain and therefore have not been “submitted to” the lead agency for purposes of subdivision (e)(7) and need not be included in the record.

Key Point:

This case confirms that, with limited exception, the scope of the administrative record in a CEQA case is very broad and agencies should be careful to include: (1) the materials in the EIR consultant’s project files, and subconsultant’s files to the extent the agency owns or exercises control over those files, (2) audio tapes of public hearings where no transcripts are available, and (3) all documents received by or submitted to the agency, including documents “submitted” as URL citations in comment letters.

Written By: Tina Thomas and Ashle Crocker
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.