by William W. Abbott and Robert T. Yamachika
In a previous article, we noted that a disorganized administrative record could be fatal to project approval if the land use decision is challenged in court. As noted in Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, a court could set aside a project approval simply because the administrative record was poorly organized. In these circumstances, the developer and the lead agency share a mutual interest in investing in timely review and organizational efforts in the administrative record long before a CEQA challenge is filed. Once the parties recognize that record organization is critical, they then face the question of what should the preparers focus in on? You may not like the answer.
In the recent decision of County of Orange v. Superior Court (2003) 113 Cal.App.4th 1, we begin to see the next generation of issues regarding the record. In this case, a challenger to a project filed an objection with the trial court over the County’s inclusion of certain earlier environmental documents within the administrative record for the trial. The trial court agreed, leaving the lead agency and the real party in interest with the dilemma of litigating the case based upon a limited record or seeking immediate relief in the appellate court. They chose the latter, and were successful in obtaining a quick reversal. In reversing the trial court, the appellate court noted that “. . . particularly in the CEQA context, time is money. The name of the game may be, from the project opponent’s point of view, to spot the inadequacy in the EIR, but the game itself must be played quickly.” Id. at 15. Ruling for the lead agency, the appellate court interpreted broadly the scope of the administrative record. This may work well for an agency trying to bring documents in, however, the sword can cut both ways. The potential for legal mischief exists if the petitioner is successful in defining the record in a broader manner than intended by the lead agency. It also raises the potential that CEQA cases may involve two trials; one on the record and one on the merits.
As a reminder, Public Resources Code section 21167.6(e), identifies a lengthy, comprehensive (but non-exclusive) list of documents for inclusion in the record. The list includes:
(1) All project application materials.
(2) All staff reports and related documents prepared by the respondent public agency with respect to its compliance with the substantive and procedural requirements of this division and with respect to the action on the project.
(3) All staff reports and related documents prepared by the respondent public agency and written testimony or documents submitted by any person relevant to any findings or statement of overriding considerations adopted by the respondent agency pursuant to this division.
(4) Any transcript or minutes of the proceedings at which the decisionmaking body of the respondent public agency heard testimony on, or considered any environmental document on, the project, and any transcript or minutes of proceedings before any advisory body to the respondent public agency that were presented to the decisionmaking body prior to action on the environmental documents or on the project.
(5) All notices issued by the respondent public agency to comply with this division or with any other law governing the processing and approval of the project.
(6) All written comments received in response to, or in connection with, environmental documents prepared for the project, including responses to the notice of preparation.
(7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project.
(8) Any proposed decisions or findings submitted to the decisionmaking body of the respondent public agency by its staff, or the project proponent, project opponents, or other persons.
(9) The documentation of the final public agency decision, including the final environmental impact report, mitigated negative declaration, or negative declaration, and all documents, in addition to those referenced in paragraph (3), cited or relied on in the findings or in a statement of overriding considerations adopted pursuant to this division.
(10) Any other written materials relevant to the respondent public agency’s compliance with this division or to its decision on the merits of the project, including the initial study, any drafts of any environmental document, or portions thereof, that have been released for public review, and copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency’s files on the project, and all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division.
(11) The full written record before any inferior administrative decisionmaking body whose decision was appealed to a superior administrative decisionmaking body prior to the filing of litigation.
In terms of assembling these documents, preparers can utilize different approaches. One is to follow the 11 points of organization outlined above. Another means is by reverse chronology. The point to be made is that the papers cannot be thrown together, but need to be indexed, based upon a rational system of organization.
1. At the first sign of potential litigation, the lead agency and applicant should jointly meet to discuss the scope of the record.
2. Once the lead agency has identified critical documents in support of its decision, it is very helpful to list those documents in the findings.
3. To avoid the crushing costs of project delay resulting from litigation, start assembling the record before the lawsuit is filed.
4. Be careful what you put in writing, whether in a formal letter or an e-mail. You may have it quoted back to you in an opponent’s brief challenging the agency’s land use decision.
William W. Abbott is a partner and Robert T. Yamachika is an associate with Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.