Admissibility of Extra Record Evidence and Two Edges of the Exhaustion of Administrative Remedies Doctrine Also Examined.

by William W. Abbott and Joel Ellinwood, AICP

Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, illustrates effective application of a tiering strategy off of a combined programmatic/project EIR.

In response to state pressure to no longer discharge wastewater into San Francisco Bay, the City of San Jose (“City”) launched an extensive water recycling program. The first round of review involved a programmatic and project level EIR. It was a program in form as to the overall effort, and a project EIR as to the initial phase. Over time, there was the need to further expand the re-use area. The City prepared a negative declaration for consideration of the expansion area, including the transmission pipeline. Subsequently, the City desired an alternative pipeline route, and based upon an initial study, approved an addendum to the original EIR and negative declaration. Pursuant to CEQA, an addendum is not circulated for public comment.

A citizens group and a local water district filed a CEQA challenge. At trial, the petitioners offered up several declarations in support of the position that the EIR/Neg Dec/addendum combination was invalid. The court rejected the attempt to bring in new evidence, and upheld the lead agency’s approval of the alternative pipeline route, based upon the program EIR with the addendum.

Important aspects of this decision:
In most circumstances, extra-record evidence is inadmissable (possible exceptions include issues pertaining to accuracy of the record, standing, procedural unfairness and agency misconduct). In this case, there was substantial evidence in the administrative record supporting the agency decision which was sufficient to meet the applicable standard of review (see discussion of Judicial Review below). The existence of evidence that was not before the agency at the time of its decision that might support a different conclusion is irrelevant.

Since the addendum is not circulated, there is no administrative remedy for a petitioner to exhaust. (See Public Resources Code section 21177 (e).) The downside of this rule is the lead agency therefore has no advance warning of potential conflict and litigation. TIP: Practitioners may wish to consider holding a non-mandatory public review on a proposed addendum in order to draw out opposition and provide the opportunity to attempt to defuse it and avoid litigation. This review may or may not involve a hearing at the discretion of the lead agency. This may also trigger an exhaustion requirement, although that is not legally certain.

Judicial review of an agency’s decision to prepare (or in this circumstance, not prepare) a supplemental EIR is subject to the more deferential standard. The test is one of whether or not there are substantial changes in the project, or the circumstances surrounding the project, which would warrant a subsequent or supplemental EIR. (Public Resources Code section 21166.) The petitioners argued that the substantial evidence to support a “fair argument” that a significant impact may result test applied. The court explained that test applies only to new projects for which a negative declaration is proposed which had not undergone prior in-depth study in an EIR. The court found that the impacts of groundwater contamination were not any different than those studied in the prior EIR/ND, therefore the triggers for requiring a new or supplemental EIR found in Public Resources Code section 21166 did not apply.

William W. Abbott is a partner and Joel Ellinwood is a senior 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.