By Glen Hansen

Applicants don’t like being denied a local land use permit. It is equally frustrating for project opponents who fail to stop an approval by a local governmental board to understand why the decision makers didn’t endorse their arguments. Many believe that the failure to prevail before an agency is not due to the merits of the cause, but is the result of some unstated, nefarious plot or bias in the collective heads of the agency board that rejected the position. However, the Court of Appeal recently reminded us that digging into the thought process of administrative officials is generally out of bounds.

In San Joaquin Local Agency Formation Commission v. Superior Court (South San Joaquin Irrigation District) (No. C056463, April 22, 2008), the Court of Appeal, Third Appellate District, held that a “disappointed” applicant to a local agency formation commission ("LAFCo") could not take the depositions of the commission or the commission’s executive officer  to learn what information outside of the record the commissioners either had when they denied the application, or needed to approve the application. The court ruled that the depositions were not permitted for two reasons.

First, the extra-record evidence that the applicant wanted to obtain in the depositions was not admissible anyway. The action involved a quasi-legislative administrative decision by the commission. A mandamus proceeding that challenges a quasi-legislative administrative decision depends upon whether the agency has engaged in “prejudicial abuse of discretion.” Such abuse of discretion exists where the court finds that the agency’s decision is not supported by substantial evidence in light of the whole administrative record. Therefore, because judicial review is limited to the administrative record, the extra-record evidence sought by the applicant in the depositions was not admissible.  

The applicant then tried, unsuccessfully, to shoe-horn the case into an exception to the ‘no extra-record evidence’ rule. Extra-record evidence is allowed in the rare situation where 1) the evidence existed before the agency made its decision, and 2) it was not possible in the exercise of reasonable diligence for the party to have presented this evidence to the agency before the decision was made. However, the applicant in this case failed to satisfy that criteria. The applicant failed to convince the court that the commissioners applied some “secret standards” that the applicant was not aware of during the administrative proceedings. The court explained:

[P]ermitting disappointed applicants to inquire as what further showing was necessary would result in unending cases and impede the separation of powers and the deference accorded quasi-legislative decisions.

Second, the depositions that the applicant wanted to conduct would have violated the “deliberative process privilege.” Under that privilege, senior officials of all three branches of government enjoy a qualified, limited privilege not to disclose or be examined about 1) the mental processes by which they reached a decision, and 2) the substance of deliberations that reflect advice, opinions and recommendations by which they form government policy. The concept is that an agency’s “decision-making process” should not have to be exposed. 

This case illustrates that, instead of building a case based on the thought processes of agency officials, disappointed applicants must be diligent during the administrative process in making sure that the record contains all of the evidence needed to later challenge the agency decision.

Glen Hansen is a senior associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP 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.