Tag: Administrative Record

Third District Finds Trial Court Committed Non-Prejudicial Error When It Excluded Documents from Record Under the Deliberative Process Privilege, Upholds Revised EIR Against Other CEQA Challenges

General Posted by   

Citizens for Open Government v. City of Lodi, (3rd Dist. March 28, 2012 [modified April 25th, 2012]) __Cal.App.4th__ (Case No. C065463, C065719)

Factual and Procedural Background

In 2002, Browman Company applied to the City of Lodi for a use permit to develop a 35-acre shopping center. In 2003, the city issued a NOP for a draft EIR for the proposed project. The city approved the project in 2004. Lodi First and Citizens for Open Government (COG) filed separate lawsuits (Lodi First I and Citizens I) challenging the project.

In December 2005, the trial court granted the petition for writ of mandate in Lodi First I.  The city council rescinded approval of the project and decertified the 2004 EIR. In 2006, the city issued a NOP for the revised EIR. In 2007, COG and the city stipulated to dismiss Citizens I.

In October 2007, the city circulated revisions to the EIR for public review and comment.  The city concluded some of the comments it had received on the revised draft EIR were beyond the scope of the revisions and barred by res judicata. The city declined to provide substantive responses to these comments. In May 2009, the city council conditionally approved the project entitlements and adopted findings of fact and a statement of overriding considerations for the project.

In order to proceed with the project, the city filed a petition to discharge the writ in Lodi First I. As part of this process, the city lodged a supplemental administrative record. Both COG and Lodi First filed separate lawsuits challenging the final revised EIR. After filing their lawsuits, both groups contended the supplemental administrative record excluded documents, including internal agency communications and communications with city consultants.

COG filed a motion to augment the supplemental administrative record. The court granted the motion in part and denied the motion in part based on the attorney-client, attorney-work-product and deliberative process privileges. In 2010, following a hearing on the merits, the trial court granted the City’s request to discharge the 2005 writ in Lodi First I and deny the petitions in Citizens II and Lodi First II. Both Lodi First and COG appealed.

The Appellate Court’s Decision

On appeal, Lodi First and COG argued the trial court erred in applying the deliberative process privilege to exclude some emails from the administrative record. Appellants also challenged the sufficiency of the revised EIR on numerous grounds and disputed the trial court’s ruling precluding them from challenging certain issues based on res judicata.

The Deliberative Process Privilege

Under the deliberative process privilege, senior officials in government enjoy a qualified, limited privilege not to disclose certain materials or communications. These include the mental processes by which a given decision was reached and other discussions, deliberations, etc., by which government policy is processed and formulated. The deliberative process showing must be made by the one claiming the privilege. Not every deliberative process communication is protected by the privilege.  Instead, the privilege is implicated only if the public interest in nondisclosure clearly outweighs the public interest in disclosure.

In the trial court, the city argued the deliberative process privilege applied because the city manager, city attorney, community development director, and other consultants engaged in various deliberative discussions and document exchanges concerning revisions to the EIR. The privilege was required, the city argued, “to foster candid dialogue and a testing and challenging of the approaches to be taken…” On appeal, Lodi First claimed this assertion was insufficient to support nondisclosure through the deliberative process privilege. The appellate court agreed, finding the city offered a correct statement of policy, but that invoking policy was not sufficient to explain the public’s specific interest in nondisclosure of the documents at issue. As a result, the city failed to carry its burden, and the trial court erred in excluding 22 e-mails from the administrative record based on the deliberative process privilege.

While the trial court erred in excluding these documents, this error was not necessarily prejudicial. Under the standard for prejudicial error established by the California Constitution, the appellant bears the burden to show it is reasonably probable he or she would have received a more favorable result at trial had the error not occurred.

Lodi First acknowledged it could not satisfy its burden to prove prejudice on appeal because it had not seen the documents that were erroneously withheld. Lodi First claimed the improper withholding of the documents itself was prejudicial because it was impossible for Lodi First to acquire them. The appellate court disagreed and noted Lodi First should have sought writ review of the trial court’s ruling on the motion to augment the administrative record. In addition, the appellate court, citing Madera Oversight Coalition Inc. v. County of Madera (2011) 199 Cal.App.4th 48, disagreed with Lodi First’s contention that the incomplete record itself was a prejudicial error requiring reversal regardless of the actual contents of the withheld documents.

The Range of Alternatives Considered

Lodi First argued the revised EIR did not comply with CEQA because the range of alternatives to the project did not both satisfy most of the project objectives and reduce significant effects of the project. Relying on both the CEQA Guidelines and long-standing precedent, the court rejected Lodi First’s argument.

First, the court of appeal cited CEQA Guidelines section 15126.6 for the assertion that “there is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason.” In addition the court noted that the California Supreme Court has explained how a “rule of reason” must be applied to the assessment of alternatives to proposed projects.

In this case, the revised project considered five alternatives: (1) no project; (2) alternative land uses; (3) reduced density; (4) reduced project size; and (5) alternative project location.  The alternative land use and reduced project density alternatives were not considered for further evaluation because they were infeasible or would not meet the goals of the project. The appellate court found the rejection of these alternatives for further review was reasonable.  The three remaining alternatives were discussed in detail in the revised EIR and provided substantial evidence of a reasonable range of alternatives.

Urban Decay Analysis

The trial court granted the petition for writ of mandate in Lodi First I, in part, because the analysis of cumulative urban decay impacts was inadequate for omitting two related projects in the geographic area. An updated economic impact/urban decay analysis was prepared in response to the trial court’s order to decertify the original EIR.

Lodi First argued the revised EIR inaccurately described the project’s environmental setting by failing to discuss existing blight and decay conditions in east Lodi. The appellate court, by de novo review, determined the blight at issue was not necessarily related to the retail environment at all. Further, the revised EIR analyzed the potential for urban decay with consideration of conditions in east Lodi. The revised EIR’s discussion of cumulative urban decay impacts was adequate under CEQA.

The Economic Baseline

COG argued the city erred in the revised EIR by failing to assess urban decay impacts “under radically changed economic conditions.” COG asserted the city should have reassessed urban decay impacts in light of the economic recession that occurred after the 2006/2007 economic analysis performed for the project. The appellate court determined the city’s decision not to update the baseline was supported by substantial evidence. First, the city offered evidence that updating the baseline presented a “moving target” problem, where updates to the analysis would not be able to keep pace with changing events.  In addition, the city presented evidence that the changing economic conditions did not affect the urban decay findings based on the 2006/2007 economic analysis. Therefore, the city did not abuse its discretion when it declined to update the baseline.

Agricultural Impacts

COG argued the original EIR and revised EIR failed to disclose cumulative impacts to agriculture and that there was no substantial evidence to support the rejection of a heightened mitigation ratio.

The appellate court first determined that the revised EIR satisfied the standards established by the CEQA Guidelines for discussing cumulative impacts. The EIR explained the amount of prime farmland lost due to the project, the amount of land lost due to the project and other proposed projects, and that the cumulative impacts to agricultural resources would be significant and unavoidable. The discussion met the standard for “adequacy, completeness, and a good faith effort at full disclosure.”

After finding the revised EIR’s discussion of cumulative impacts to agricultural resources adequate, the appellate court determined the city did not have to accept a heightened mitigation ratio as asserted by COG. The city required a 1:1 conservation easement ratio for the loss of farmland, but also determined that agricultural easements do not completely mitigate for the loss of farmland. The city adopted a statement of overriding considerations and asserted the 1:1 ratio is appropriate for the project. COG argued the rejection of a 2:1 mitigation ratio was not supported by substantial evidence. The appellate court disagreed and noted that the appropriate standard was whether the finding that there were no feasible mitigation measures to reduce the impacts to prime farmland was supported by substantial evidence.

The Doctrine of Res Judicata

Lodi First attempted to argue the revised EIR failed to disclose cumulative water supply impacts. The trial court held that res judicata barred Lodi Frist from raising this claim. The appellate court agreed.

Res Judicata (claim preclusion) bars relitigation of a cause of action that was previously adjudicated in another proceeding between the same parties or parties in privity with them and that adjudication resulted in a final decision on the merits. In this case, a writ was issued in Lodi First I and was final on the merits.  The trial court granted Lodi First’s petition and held the 2005 EIR was inadequate under CEQA. The city chose not to appeal, and the ruling was final because the time to appeal passed.

Lodi first attempted to argue res judicata did not preclude its water supply challenge because it was based on new information and the city’s 2009 findings regarding the project’s water supply impacts differed from its 2005 findings. For the purposes of res judicata, causes of action are considered the same if based on the same primary right. A claim is based on the same primary right if based on the same conditions and facts in existence when the original action was filed.

The appellate court determined the problem of overdraft cited by Lodi First was not new evidence. The city’s own 1990 general plan identified overdraft in the aquifer. While Lodi First claimed new evidence established more information than the 1990 EIR, the critical fact was that the city’s water supply was inadequate to serve new development.  This was known at the time of the 2004 EIR. In addition, the court determined the findings were consistent in that both findings were that the project would have no significant impact on water supply and therefore, no mitigation was necessary

Finally, the appellate court disagreed with Lodi First that res judicata should not be applied to the water supply issue due to public policy. When the issue is a question of law rather than of fact, res judicata may not apply if injustice would result or if the public interest requires that relitigation be allowed. Lodi First’s water supply issue did not present a question of law, so the public interest exception did not apply.

Conclusion

This case demonstrates the limitations of the deliberative process privilege for public agencies. Agencies attempting to rely on this privilege must be prepared to support their assertion of the privilege with a specific showing that the nondisclosure outweighs the public interest in disclosure; broad policy statements are not enough to support application of the privilege.  In addition, the case offers an important reminder of the consequences of failing to raise all potential arguments in original CEQA proceedings, and indeed, most regular civil proceedings.

RMM partners Andrea Leisy and Howard Wilkins and associate Laura Harris represented real party in in interest Browman Development in this litigation.

Fifth District Holds EIR Inadequate for Using Future Baseline Traffic Conditions, Failure to Address Water Supply Issues, and Inadequate Mitigation for Cultural Resources Impacts

General Posted by   

Madera Oversight Coalition, Inc. v. County of Madera
(2011) 199 Cal.App.4th 48

The Fifth District Court of Appeal held the trial court did not err in applying section 21167.6, subdivision (e) and determining which documents to include and exclude from the administrative record.  The Court also held a mitigation measure that proposed to verify that certain archaeological sites are historical resources for purposes of CEQA constituted an unlawful deferral of environmental analysis; that the EIR’s traffic analysis lacked clarity regarding the baseline used to determine the project’s potential impacts; and that the trial court correctly determined that the analysis of the project’s proposed water supply was inadequate.

Real Parties in Interest Tesoro Viejo, Inc., Rio Mesa Holdings, LLC and Tesoro Viejo Master Mutual Water Company proposed the Tesoro Viejo mixed-use development project, a 1,579-acre development located in southeastern Madera County. The project proposed a mix of residential, commercial, and light industrial uses plus areas for open space, recreation, and other public uses. The project would contain up to 5,190 dwelling units and about three million square feet for commercial, retail, office, public institutional, and light industrial uses.

In February 2006, Tesoro Viejo requested that Madera County initiate the project’s environmental review process.  The county circulated the EIR, received comment and provided responses.  In December 2008, the County certified the EIR and approved the project.  Petitioners Madera Oversight Coalition, Inc., Revive the San Joaquin, Inc., and the Dumna Tribal filed a petition for writ of mandamus and complaint for declaratory and injunctive relief challenging the County’s approval of the project.  They alleged violations of CEQA, the Planning and Zoning Law and the Water Code.

In May 2009, the County lodged and certified the administrative record.  Along with their briefing, Petitioners thrice requested augmentation of the administrative record.  After a hearing, the trial court granted the petition.  The parties appealed and cross-appealed.  The dispute focused in part on various questions concerning the scope of the administrative record and the admission of extra-record evidence.

First, the court addressed questions regarding the scope of the record, which involved both rulings made by the trial court and motions filed on appeal.  The court found that legislative intent and case law indicate that, after an administrative record is certified, the trial court has authority to decide issues relating to whether an omitted document should have been included in the administrative record pursuant to the provisions of subdivision (e) of Public Resources Code section 21167.6.  On appeal, the court noted, its role was to review the trial court’s decisions, giving deference to the trial court’s factual determinations, rather than make an independent decision regarding the scope of the record.  The court found such a role was appropriate in light of the non-discretionary nature of the determinations made by the agency in preparing and certifying the administrative record and the independent judicial scrutiny of trial court to in applying section 21167.6, subdivision (e) to the disputes before it.  Furthermore, the court found that petitioners’ motion to augment the record, filed in the appellate court concerning documents on which the trial court had already ruled, was not a proper way to present the court with issues concerning the inclusion of the documents in the administrative record.  Although the court ultimately construed the motion to augment as a direct challenge to the trial court’s decision to deny the request to include four documents in the administrative record, it rejected petitioners’ challenge because they failed to establish the trial court erred in excluding the documents.  The court also rejected respondents’ claims regarding certain documents the trial court excluded from the record and certain documents the trial court included in the record, finding that respondents did not affirmatively demonstrate that the trial court erred.  The court did find that the trial court failed to include one EIR comment letter requested by petitioners, but that no prejudice occurred by its exclusion because the letter raised no issues not raised in the EIR.

The court then reviewed the adequacy of the EIR’s cultural resources analysis.  The court noted that the EIR included analysis of certain archaeological sites at the development site that had the potential to be a “historical resource” for the purposes of CEQA.  The EIR also acknowledged a potentially significant adverse impact on each of the sites.  While the EIR included mitigation which purported to reduce the impacts to a less than significant level, the court found the mitigation constituted improper deferral because it required a “verification” of whether the site was a historical resource before preservation and recovery actions would be required.  The court noted that the verification process described in the mitigation measure is not expressly authorized by CEQA or the Guidelines.  Nor could such a process be harmonized with CEQA and the Guidelines, as Guidelines §15064.5(c)(1) states: “When a project will impact an archaeological site, a lead agency shall first determine whether the site is an historical resource …” The court found use of the word “shall” in CEQA Guidelines, section15064.5, subdivision (c)(1) indicated that the determination whether an archaeological site is an historical resource is mandatory.  Moreover, that provision’s use of the word “first” indicates that the determination must be made before the final EIR is certified and it cannot be undone thereafter.  The court concluded that the mitigation measure set forth a course of action that was contrary to law.

The court also found that, while an EIR’s discussion of mitigation measures for an impact to historical resources of an archeological nature must include preservation in place pursuant to CEQA Guidelines, section 15126.4, subdivision (b)(3), preservation in place is not always mandatory, even when feasible.  The court noted that, preservation in place is the preferred manner of mitigating impacts to archeological sites pursuant to the language CEQA Guidelines, section 15126.4, subdivision (b)(3)(A), unless another type of mitigation better serves the interests protected by CEQA.  The court interpreted “preferred manner” to mean that feasible preservation in place must be adopted to mitigate impacts to historical resources of an archaeological nature unless the lead agency determines that another form of mitigation is available and provides superior mitigation of the impacts.

With respect to the EIR’s traffic analysis, the court found the EIR was inadequate because it used predicted future conditions as a baseline.  Citing CEQA Guidelines section 15125, subdivision (a) and following the court’s interpretation of the guideline in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, the court concluded: (a) a baseline used in an EIR must reflect existing physical conditions; (b) lead agencies do not have the discretion to adopt a baseline that uses conditions predicted to occur on a date subsequent to the certification of the EIR; and (c) lead agencies do have the discretion to select a period or point in time for determining existing physical conditions other than the two points specified in subdivision (a) of Guidelines section 15125 [“as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced”], so long as the period or point selected predates the certification of the EIR. Furthermore, while the respondents asserted the EIR did analyze traffic impacts employing existing conditions as the primary baseline, based on its review of the EIR’s traffic analysis, the traffic impact analysis study attached to the EIR, and the county’s responses to public comments, the court found the EIR lacked clarity regarding which baseline or baselines were used, which contributed to its inadequacy as an informational document.

The court also found that the Water Supply Assessment (WSA) and the EIR did not provide full disclosure of relevant information related to water supply because the analyses ignored contrary information and failed to discuss whether a recent legal decision would affect the availability and reliability of proposed water supplies.  According to the WSA and the EIR, the water demands of the project would be met with surface water delivered from the San Joaquin River under a contract with the United States Bureau of Reclamation. Interpreting the Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 432 the court concluded that the legal adequacy of the EIR’s discussion of the water supply for the Project depends upon whether the discussion included a reasoned analysis (i.e., a “full discussion,” a “good faith effort at full disclosure,” or an “analytically complete and coherent explanation”) of the circumstances affecting the likelihood of the availability of the proposed water supply. While the WSA included an opinion letter of a water expert which concluded the legal issues concerning water supply would not affect the availability of the contractual water supply, neither the opinion letter nor the WSA acknowledged the existence of the a letter from the Bureau of Reclamation stating it would object to the use of the water supply for a municipal supply or for commercial uses.  Nor did the WSA or EIR address a recent legal decision invalidating the water supply analysis for a nearby project which was also proposing to rely on reclamation contracts for water supply.  On these bases, the court concluded the public was not provided a full disclosure of the uncertainties related to the project’s water supply and that the trial court did not err in concluding that the EIR’s discussion of the water supply was inadequate under CEQA.

Finally, the court concluded that the trial court correctly determined it had the discretionary authority under Code of Civil Procedure section 1032, subdivision (a)(4) to apportion costs.  Although the petitioners obtained a writ of mandate in a CEQA proceeding, that nonmonetary relief alone does not entitle the plaintiff to costs as a matter of right under Code of Civil Procedure section 1032, subdivision (b).

12