By Katherine J. Hart
In San Diego Citizenry Group v. County of San Diego (Published August 26, 2013, D059962) ___ Cal.App.4th ___, the Court of Appeal, Fourth District, upheld San Diego County’s (County) certification of an EIR and approval of a Tiered Winery Ordinance Amendment (Winery Ordinance) which permits boutique wineries in agriculturally designated and zoned land in the unincorporated area of the County by right. In ruling on a dispute regarding the cost of transcripts in the administrative record, the Fourth Appellate District reversed the trial court and held appellant was not required to reimburse the County for the costs of transcribing transcripts of the planning commission meetings pursuant to Public Resources Code section 21167.6(e)(4).
Starting in 2006, San Diego County began investigating options on whether and how to allow boutique wineries by right in unincorporated areas zoned for limited agriculture and general agriculture. After approving a negative declaration and adopting an ordinance permitting boutique wineries on public roads in the unincorporated area by right, the County rescinded the ordinance and directed staff to draft a Winery Ordinance and analyze such ordinance pursuant to an EIR. The total unincorporated area to be affected by the proposed ordinance was about 441,000 acres.
In July 2009, the draft EIR (DEIR) for the Winery Ordinance was circulated for public review and comment. The DEIR identified 22 significant and unavoidable impacts relating to air quality, biological resources, cultural resources, hydrology and water quality, noise, traffic, and water supply. It also identified three project alternatives, including: (1) enhanced enforcement requiring a compliance checklist; (2) a limited five-year by-right ordinance; and (3) the no project alternative.
After receiving comments on the DEIR, the County revised and recirculated the impacts analysis regarding water supplies. After consideration by the Planning Commission, the County Board of Supervisors certified the EIR, adopted findings and a statement of overriding considerations, and approved the Winery Ordinance, along with the necessary General Plan amendments.
Petitioner/Appellant San Diego Citizenry Group timely challenged the County’s certification of the EIR and approval of the Winery Ordinance.
The Administrative Record
The Citizenry Group requested that the County prepare the administrative record. Accordingly, the County prepared and certified the record, which consisted of 5,648 pages. The Citizenry Group refused to pay for the County’s cost of preparing the transcripts for the planning commission meetings. The County moved for an order determining and directing payment of costs, which petitioner opposed.
The trial court issued an order denying the writ petition and ordered Petitioner/Appellant to reimburse the County of the costs of the record preparation.
Appellate Court Decision
The Citizenry Group based its appeal on the following issues: (1) the County Board failed to make a “preliminary policy determination” regarding the project objectives; (2) the project objectives were too narrowly constructed to allow for feasible mitigation measures; (3) the FEIR failed to discuss all potentially feasible mitigation measures in meaningful detail; (4) the mitigation measures proposed in the FEIR were not supported by substantial evidence; (5) the FEIR failed to adequately discuss and mitigate traffic impacts of the Winery Ordinance to private roads; (6) the FEIR did not includes sufficient information regarding each of the project’s significant environmental impacts; (7) the discussion of water supply impacts was lacking; (8) the EIR’s discussion of the grading permit requirements was misleading; (9) the statement of overriding considerations was not supported by the EIR; (10) the Winery Ordinance is inconsistent with the County’s General Plan; and finally, (11) the trial court erred in requiring them to pay for the Planning Commission transcript as part of the administrative record costs.
The appellate court dismissed all of the Citizenry Group’s claims save one: the payment of the transcripts for the planning commission hearing. Apparently, the transcripts of the planning commission meetings were not transcribed until December 2010, well after the Board’s August 4, 2010 hearing on the project. In reversing the trial court’s order directing the Citizenry Group to pay $6,067.94 for the cost of the hearing transcripts for the planning commission meetings, the Court of Appeal reasoned that the transcripts did not need to be included in the administrative record because the transcripts were not before the Board of Supervisors when it certified the FEIR and approved the project. In support of its ruling, the appellate court highlighted Public Resources Code section 21167.6(e)(4), which requires the party preparing the administrative record to include “any transcript or minutes of the proceedings before any advisory body to the respondent public agency that were presented to the decisionmaking body prior to action on the environmental documents on or the project.” The appellate court also noted that section 21167.6(f) requires a party preparing the record to do so at a “reasonable cost.”
As might be expected, the County argued that pursuant to the Citizenry Group’s request for preparation of the record and dictum in the County of Orange v. Superior Court (2003) 113 Cal.App.4th 1 (County of Orange) decision (e.g., “Section 21167.6(e) contemplates that the administrative record will include pretty much everything that ever came near a proposed development or to the agency’s compliance with CEQA in responding to the development.” (Id. at p. 8.), it would have risked certifying an incomplete record and thus, losing the case, if it had not included the transcripts from the planning commission hearings in the administrative record. The Fourth District dismissed the County’s concerns by indicating the Citizenry Group’s request for the County to prepare the record was simply a recitation of the language in section 21167.6(a) and further, by distinguishing the County of Orange case on the grounds that “the planning commission transcripts were not part of the history of approval of the FEIR because they did not come into existing until after the County’s approve of the FEIR in August 2010.”
The reversal of the trial court’s order that the Citizenry Group pay the cost of the preparation of the planning commission transcripts is the most noteworthy aspect of this decision and has potentially broad CEQA application.
Perhaps most importantly, neither the parties nor the appellate court so much as mentioned the Consolidated Irrigation District v. Superior Court of Fresno County (Selma II) case out of the Fifth District Court of Appeal filed on April 26, 2012. In Selma II, the certified and lodged record of proceedings included only two transcripts; it omitted transcripts from one planning commission meeting and two city council meetings. Petitioner CID requested that the transcripts of the three public hearings be included in the record. The City of Selma replied that the audio tapes of those three meetings had not been transcribed, but that CID was welcome to transcribe the tapes at its cost and move to augment the record after transcription occurred. The Fifth District addressed augmentation of the administrative record issues. First, it looked Section 21167.6(e)(4) and determined that the section did not require the transcription of the audio tapes and inclusion of those transcripts in the record. Then, the Court looked at whether the tape recordings of public agency hearings qualified as “other written materials relevant to the [City’s]… decision on the merits of the project” under Section 21167.6(e)(10), as urged by CID. It held that “the purposes of CEQA are best served by interpreting the phrase ‘other written materials’ to include audio recordings of meetings when no transcript of those meetings has been prepared.” Thus, the appellate court held that an audio recording could be considered a “writing” for purposes of Section 21167.6(e)(10).
The Fourth Appellate District never addresses this conspicuous disparity in its opinion. The reasoning used by the Fourth Appellate District for ordering the County to bear the cost of the planning commission transcript was that the transcript had not been prepared prior to the Board’s decision on the Project and thus, was not “presented to the decisionmaking body prior to action on the environmental documents or on the project” under Section 21167.6(e)(4). In other words, only an audio recording existed at the time the Board considered the project took action. Herein lies the rub. How can this similar factual pattern but disparate holding be reconciled with the Selma II case? At best, these two opinions create and odd conundrum for lead public agency staff having to certify and lodge administrative records. Read together, it appears one must assume the audio file would come in under the Selma II case, but the transcript would be excluded from the record under the Citizenry Group case. Of course this is not ideal given there is no practical way to cite to a transcript in a brief. Until the California Supreme Court weighs in on this issue, I suggest the following course of action when an agency prepares the administrative record of proceedings:
If there is any indication that litigation of a project could ensue, the lead agency should have any advisory agency or commission (i.e., planning commission) transcript(s) transcribed prior to the board or council’s first hearing on the project. Proceeding in this manner would ensure the administrative record is complete with all relevant transcripts and would allow the agency to recover costs of those transcripts should it prevails on the merits.
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.