A state appellate court has reinstated a lawsuit challenging the environmental impact report for a 6,500-unit project in Madera County. The Fifth District Court of Appeal found that a lower court's dismissal of the lawsuit because of procedural problems was inappropriate.

The lawsuit was filed by six Madera County residents over the EIR for the Village of Gateway, a 2,392-acre project west of Highway 41 and north of the San Joaquin River. In March 2002, the Madera County Board of Supervisors voted 3-2 to approve an EIR and general plan amendment for the project. But it was not until October 2002 that the board adopted findings of overriding considerations (the EIR had identified significant, unmitigated impacts), as well as conditions of approval and a mitigation monitoring program. The county also filed a “notice of determination” regarding the environmental documents at that time.

In November of that year, the project opponents filed a lawsuit against the county contending that the EIR failed to adequately analyze all of the project's individual and cumulative impacts, and that the EIR contained infeasible and unenforceable mitigation measures. The lawsuit also alleged general plan inconsistency and a violation of the Water Code.

The plaintiffs soon began bickering with the county and the real parties in interest - seven developers, landowners and special districts led by Castle & Cooke California, Inc. - over preparation of the administrative record. After going back and forth, the county in April 2003 advised the plaintiffs that preparation of the record would cost $59,127.50 and that the county would file a motion to dismiss the lawsuit unless the plaintiffs deposited that amount with the county within two weeks.

The plaintiffs refused to deposit the money and in June submitted an administrative record amounting to 95 documents containing 1,731 pages, or about 4% of the 2,200 documents that the county estimated were part of the record.

In July 2003, Madera County Superior Court Judge David Minier dismissed the lawsuit on the grounds that the plaintiffs had failed to request a hearing within 90 days of filing a petition as required by the California Environmental Quality Act (CEQA), and that they had failed to prepare the administrative record within 60 days. Minier said the record that the project opponents did prepare “was merely a token filing.”

The project opponents appealed, and a unanimous three-judge panel of the Fifth District overturned the lower court.

The Fifth District first dealt with the issue of the hearing request. Under CEQA, a plaintiff has 90 days to request a hearing. The project opponents did file a request, but that request did not set a hearing date. The real parties in interest and the trial court said that the failure to set a hearing date violated the applicable section of CEQA, Public Resources Code § 21167.4.

The Fifth District ruled, however, that although a hearing date might have been required prior to a 1994 CEQA amendment, it no longer was. “Instead, the current version of § 21167.4 requires the date for the hearing on the petition's merits to be set by the court in conjunction with setting the briefing schedule,” Justice Betty Dawson wrote for the court.

As for the administrative record problems, the Fifth District ruled that terminating the litigation was an overly harsh sanction. The court noted that CEQA, while establishing sanctions in certain situations, does not prescribe any express penalties against petitioners who fail to submit an administrative record within the statutorily established timeframe. Dismissing the lawsuit “erroneously elevates prompt resolution of CEQA litigation above other CEQA purposes and competing policy considerations,” the court held.

The court sent the case back to the Superior Court, but not before listing - in an unpublished portion of the opinion - a long series of legal and factual issues for the lower court to consider regarding the contents of the administrative record. The list of issues identified by the court likely means that the fight over the administrative record, let along the actual merits of lawsuit, is far from over.

The Case:
Leavitt v. County of Madera, No. F044068, 04 C.D.O.S. 9927, 2004 DJDAR 13531. Filed November 3, 2004. Modified November 30 at 2004 DJDAR 14258.
The Lawyers:
For Leavitt: Patience Milrod, (559) 442-3111.
For the county: John L.B. Smith, Baker, Manock & Jensen, (559) 432-5400.