By Katherine J. Hart
The Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, case involved the consolidation of three separate actions revolving around the City of Lodi’s (City) approval of a conditional use permit (CUP) for a shopping center to be anchored by a Wal-Mart Supercenter. The first action stemmed from the City’s petition to discharge the writ issued in the earlier lawsuit wherein the 2004 EIR for the Wal-Mart Supercenter was challenged and the City’s lodging of a supplemental administrative record. The second and third actions arose out of Appellants Citizens for Open Government’s (Citizens) and Lodi First’s challenge to the City’s certification of the 2008 revised EIR, and subsequent approval of the CUP and shopping center project. The trial court consolidated all three actions and issued one ruling.
Adequacy of the Administrative Record
Appellants sent letters to the real parties in the cases – Wal-Mart and the Browman Company –contending that certain internal agency communications were missing from the supplemental administrative record. The City responded to Petitioners by preparing a privilege log outlining the privileged documents, and augmenting the supplemental record with additional documents. Still discontented with the supplemental record, Citizens filed a motion to augment the record. The trial court conducted an in camera review of the documents claimed to be subject to the deliberative process privilege and ordered five of the 27 documents to be produced. Notably, the trial court did not conduct an in camera review of the attorney-client or attorney work product privileged documents. (Id. at p. 304.) A hearing on the merits was held in February 2010 and the trial court granted the City’s request to discharge the writ in the first case, and denied the petitions for writ of mandate regarding the revised EIR certified by the City in 2009.
On appeal, Appellants first argued that the trial court erred in excluding 22 emails exchanged between City staff and the EIR consultants pursuant to the deliberative process privilege, and thus, the record was so incomplete as to require reversal.
Initially, we note the appellate court never addressed Appellants’ first three arguments as to why the deliberative process privilege should not apply (i.e., Public Resources Code section 21167.6(e) abrogates the privilege, the privilege does not apply to quasi-judicial decisions, and the privilege does not apply to emails that post-date the release of the final revised EIR). Instead, the appellate court agreed with Petitioner Lodi First that the City failed to make the detailed and specific showing required to establish a claim of privilege and never demonstrated that the public’s interest in nondisclosure outweighed the public’s interest in disclosure of the 22 emails. Accordingly, the appellate court found that the trial court erred in excluding the 22 emails from the administrative record based on the deliberative process privilege. In reaching this conclusion the court did not have to address Appellants other contentions: leaving these issues for another day.
The appellate court then questioned what prejudice was incurred by Appellant Lodi First, and held that “reversal is not required because Lodi First has failed to meet its burden to show prejudicial error in the trial court’s exclusion of [the] emails from the administrative record.” (Id. at p. 308.) In noting the missing emails did not deprive the appellate court of its ability to review the judgment, the appellate court aptly acknowledged that the exclusion of the emails simply “deprived Lodi First of the opportunity to review 22 e-mails between the city staff and EIR consultants to determine whether those documents could have bolstered the analysis of the arguments it was going to make on appeal.” The appellate court then rejected Petitioners’ argument that any time one document is erroneously excluded from an administrative record, reversal is required. The appellate court then advised that the proper procedural avenue to remedy Petitioners’ concerns regarding the trial court’s ruling on the motion to augment the record was to seek an extraordinary writ, which Petitioners had not done. The appellate court declined to exercise its discretion to treat Petitioners’ appeal as a petition for extraordinary writ since the normal 60-day time frame for filing such an appeal had long since run.
Reasonable Range of Alternatives
The Third Appellate District rebuffed Appellant Lodi First’s contention that an EIR must include alternatives that both satisfy most of the project objectives and reduce significant effects of the project. Focusing on subdivision (a) of Section 15126.6 and citing to Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, the court of appeal reiterated the “rule of reason” as a guide to selecting what alternatives should be analyzed in an EIR, and held that despite the fact the revised EIR did not discuss an alternative that would feasibly attain the most basic project objectives and avoid or significantly reduce project impacts to less than significant, the record contained substantial evidence to support the conclusion that a reasonable range of alternatives had been analyzed.
Urban Decay – Baseline for Review
One of the main purposes of the City’s revised EIR was to address the 2004 EIR’s inadequate discussion of cumulative urban decay impacts, which the trial court had previously determined was defective due to a lack of discussion of the two existing Wal-Mart Supercenter projects in Stockton, a neighboring city. The appellate court held that the revised EIR did not need to address urban “blight” conditions contained in the Redevelopment Agency documents because “blight” and “urban decay” are two separate issues. It also held that the City did not abuse its discretion in using an economic baseline of late 2006/early 2007 (as opposed one of late 2008 as suggested by Petitioners) in the revised 2007 draft EIR based on the evidence in the record. That evidence suggested changing the baseline would be problematic given the fluctuating economic conditions and because the economic conditions did not affect the urban decay findings. Finally, the appellate court found there was substantial evidence to support the City’s code enforcement as a mitigation measure for urban decay. Unfortunately, that discussion was not certified for publication.
Appellant Citizens challenged the City’s analysis of project impacts on agriculture arguing that the City failed to disclose the cumulative impacts to agriculture, and failed to support its rejection of a heightened mitigation ratio (i.e., 2:1) with substantial evidence. The court of appeal soundly rejected both contentions. First, the court said that because the revised EIR contained both a table of approved developments, and acknowledged that a major annexation application had been filed with the city to annex 320 acres of prime land adjacent to the Wal-Mart project, the City had satisfied its duties under CEQA to disclose potential cumulative impacts to agricultural resources. In addressing Petitioner’s second contention, the court reframed the issue as not whether there was substantial evidence to support the rejection of a heightened mitigation ratio, but rather, whether the City’s finding that there were no feasible mitigation measures was supported by substantial evidence. Ultimately, the court of appeal found the City’s requirement that Wal-Mart purchase a permanent agricultural conservation easement over 40 acres (1:1 ratio) to mitigate for the loss of the 40 acres of prime land due to the project’s development, was adequate and well within the City’s discretion to establish given there were no feasible mitigation measures to avoid the loss of prime agricultural farmland.
The Application of the Doctrine of Res Judicata
The legal doctrine of res judicata precludes the litigation of a cause of action or issue that was previously adjudicated in another proceeding between the same parties where the decision in the prior proceeding is final and on the merits. Res judicata also bars the litigation of issues that could have been previously litigated.
In this case, Lodi First attempted to claim the project would have significant and undisclosed impacts on water supply. Both the trial court and court of appeal rejected Lodi First’s claim as barred by the doctrine of res judicata on the grounds that the original 2004 draft EIR contained a water supply discussion. Thus, Lodi First should have raised the issue in its first petition for writ of mandate filed against the City because the water supply claims were based on the same conditions and facts in existence when the original writ petition was filed, which it did not do.
While none of the appellate court’s rulings come as a surprise, there are two key aspects of the opinion to note. First, with respect to the administrative record issues, this opinion illustrates that courts are unwilling to deem interagency communications (e.g., emails) between staff and consultants (treated as an extension of staff) privileged pursuant to the deliberative process privilege unless the agency can show that the benefits of nondisclosure outweigh the public’s interest in disclosure. In other words, the mere assertion that the communication in issue reveals deliberative discussions and disclosure of it would hamper candid discussions does not constitute a valid showing that the public’s interest in nondisclosure outweighs its interest in disclosure. Thus, agency staff should exercise caution when communicating via email since those communications could very well become part of the administrative record in a CEQA case. Second, the appellate court makes very clear that disputes regarding undesired rulings on the administrative record by the trial court should be taken up on an extraordinary writ so as to reduce continued delay in a CEQA proceeding.
Katherine J. Hart is Senior Counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or 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, or 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.
 Why the Petitioners would send such a letter to real parties – as opposed to the City – is not clear from the facts in the opinion. However, such a practice is questionable given the City is the entity which certifies and lodges the administrative record, not the real parties.