An appellate court has published its opinion of what belongs in the administrative record for a California Environmental Quality Act (CEQA) lawsuit. The decision is the second opinion published in the second half of 2003 that addresses directly the contents of the administrative record under CEQA.
The latest decision, in a case from Orange County, concerned the inclusion of 1,800 pages of documents related to an environmental impact report addendum that was never adopted. A unanimous three-judge panel ruled that the material did belong in the administrative record.
A section in CEQA — specifically, Public Resources Code § 21167.6, subdivision (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 that development," the court held.
That section of CEQA has been around for years but has received little interpretation in court, said Jack Golden, a deputy county counsel for Orange County. The statute, which refers to internal notes and communications, and the court’s expansive interpretation could scare some public agencies, he noted. "At least we’ll know what the rules are going in now," Golden added.
In this case, project opponents sought to block the 1,800 pages of material from inclusion in the administrative record. Orange County Superior Court Judge C. Robert Jameson agreed and eliminated the documents from the administrative record. The Fourth District overturned that decision.
"We think we, as the administrative agency, should get to decide what is in the administrative record," Golden said. "As long as we follow the rules, neither the opponents nor the court should be able to veto that."
The decision came in the second round of litigation surrounding a controversial project in Trabuco Canyon, an unincorporated area near an abbey and a monastery in the mountains east of Irvine. In 1997, the Orange County Planning Commission certified a final EIR for a proposed 705-unit mobile home development on 222 acres. The Vedanta Society of Southern California, which owns the monastery, appealed to the Board of Supervisors. When one supervisor recused himself, the board split 2-2 on the EIR. The county determined that the tie vote meant the EIR was approved. Over time, the project was downsized to 299 single-family houses and there was a considerable amount of legal wrangling. Eventually, the Fourth District ruled in Vedanta Society of So. California v. California Quartet, Ltd., (2000) 84 Cal.App.4th 517 (see CP&DR Legal Digest, January 2001), that the 2-2 vote was inadequate to certify the EIR.
For the project to move forward under that ruling, the Board of Supervisors would either have to affirmatively vote for the EIR or order preparation of a new one. Supervisors chose the first option and only an addendum to the 1997 document was prepared. Supervisors subsequently changed their minds and a new EIR was written. The board adopted the new EIR for what had become a 293-unit development in November 2002.
The Vedanta Society and two environmental groups brought a fresh CEQA lawsuit over the new EIR. In pursuing the latest lawsuit, project opponents sought to block from the administrative record all of the documents relating to the EIR addendum that supervisors never adopted. The trial court judge agreed, and the county appealed.
The appellate court held first that the 299-unit project and the 293-unit project were "substantively the same ‘project.’" And because CEQA is an interactive process that can result in project modifications, there should "be a record of such modifications, not just those documents relating only to the finished product," Presiding Justice David Sills wrote for the court.
"If a project has been modified in response to the CEQA process, the logical inference is that the ‘process works’ and the statute is being complied with," Sills continued. "To truncate review to just the project as specified in the ‘final’ EIR not only deprives the court of material bearing on changes made by the process itself, but presumptively loads the dice against project proponents who have much more to lose if anything in the record is held inadequate."
Sills cited the other recently published case on this topic, Protect Our Water v. County Merced, 110 Cal.App.4th 362 (see CP&DR Legal Digest, September 2003). In Protect Our Water, the Fifth District Court of Appeal overturned Merced County’s approval of a gravel mine because the court found the administrative record in a CEQA suit over the mine to be poorly organized and lacking documentation to support the county’s findings.
Both the Fourth District and Deputy County Counsel Golden suggested that the Vedanta Society had learned a stalling tactic from Protect Our Water.
"Realistically, we expect an appeal from whatever decision the trial court makes," Sills wrote. "That appeal is part of the rules of the games. But it is not within the rules to build into the legal process the probability of two appeals — one from a decision without the excluded materials, and one from the decision after the first one is ostensibly corrected."
An attorney for the Vedanta Society did not return a CP&DR phone call.
The Fourth District sent the case back to the trial court for further proceedings on the merits.
County of Orange v. Superior Court of Orange County, No. G032843, 03 C.D.O.S. 9651, 2003 DJDAR 12130. Filed October 7, 2003. Ordered published November 5, 2003.
For the county: Jack Golden, county counsel’s office, (714) 834-3357.
For Vedanta Society: David Hesseltine, Conner, Blake & Griffin, (949) 622-2600.