Case Number: 20STCP00419 Hearing Date: October 08, 2020 Dept: 85
Save Our Rural Town v. County of Los Angeles, et al., 20STCP00419
Tentative decision on motion to augment the record: denied
Petitioner Save Our Rural Town (“SORT”) moves to augment the administrative record.
The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.
- Statement of the Case
Petitioner SORT commenced this proceeding on January 31, 2020, alleging causes of action for administrative mandamus declaratory relief pursuant to the California Environmental Quality Act (“CEQA”) and seeking the remedy of injunction. The verified Petition alleges in pertinent part as follows.
On May 14, 2019, rural residents from the community of Acton and members of SORT received notification that the Los Angeles County (“County”) Chief Executive Office (“CEO”) had prepared a draft “Sustainability Plan” (also known as “OurCounty”) that would soon be presented to the Board of Supervisors (“Board”) for adoption. The rural residents and SORT were informed by the CEO that the deadline to provide comments on the Draft Sustainability Plan had been extended to June 28, 2019. On June 24, 2019, the rural residents and SORT provided extensive written comments to the CEO in a letter submitted by the Acton Town Council which expressed substantial concerns regarding the OurCounty plan and the lack of an EIR.
During the month of July 2019, the CEO made changes to the Draft Sustainability Plan which did not include CEQA compliance. On July 30, 2019, the CEO released a revised Draft Sustainability Plan. On August 6, 2019 SORT submitted to the Board written concerns that the Sustainability Plan is more than just a “planning study” and that it is subject to CEQA because it will be implemented immediately and provide the “Strategic Vision” for County decisions. SORT contended that the Board should defer approval of the Sustainability Plan until a legally sufficient environmental document can be prepared.
Residents from Acton also submitted written comments to the Board expressing concern that the Sustainability Plan does not comply with CEQA. The comments explained that the renewable energy goals that are a cornerstone of the Sustainability Plan have the potential to cause substantial environmental damage if not implemented properly. They requested that these environmental impacts be addressed in the Sustainability Plan through the CEQA process.
On August 6, 2019, the Board adopted the Sustainability Plan which establishes 12 “Goals” that will be achieved through the implementation of 37 “Strategies” and 159 “Actions”. The Sustainability Plan sets forth explicit time frames for implementation of these Strategies and Actions. Neither the CEO nor the Board even mentioned the CEQA and environmental impact concerns raised by SORT and rural residents from Acton.
The Board’s motion adopting the Sustainability Plan directs the CEO to add a seventh “Board Directed Priority of Sustainability” to reflect the County’s commitment to implementing the Sustainability Plan, thus clearly and unequivocally changing the County’s planning processes and evaluation of land use and development projects. The adopted motion also directs the CEO to add a Goal-related Sustainability Plan implementation to the Management Appraisal Performance Plan (“MAPP”) goals for Department Heads.
The County has moved forward with implementing the Plan. At the County Department of Regional Planning Meeting convened on August 21, 2019, planning staff reported that they are working on implementing one group of Sustainability Plan Actions. In December 2019, the CEO was in the process of preparing a “Draft List of Near-Term Priorities” for implementing the Sustainability Plan.
Petitioners contend that there should have been environmental studies and a CEQA review of the Sustainability Plan disseminated for review and comment by the public.
- Applicable Law
For cases arising under CEQA, the content of the administrative record is governed by Public Resources Code[2] section 21167.6(e):
“(e) The record of proceedings shall include, but is not limited to, all of the following items:
(1) All project application materials.
(2) All staff reports and related documents prepared by the respondent public agency with respect to its compliance with the substantive and procedural requirements of this division and with respect to the action on the project.
(3) All staff reports and related documents prepared by the respondent public agency and written testimony or documents submitted by any person relevant to any findings or statement of overriding considerations adopted by the respondent agency pursuant to this division.
(4) Any transcript or minutes of the proceedings at which the decisionmaking body of the respondent public agency heard testimony on, or considered any environmental document on, the project, and any transcript or minutes of proceedings before any advisory body to the respondent public agency that were presented to the decisionmaking body prior to action on the environmental documents or on the project.
(5) All notices issued by the respondent public agency to comply with this division or with any other law governing the processing and approval of the project.
(6) All written comments received in response to, or in connection with, environmental documents prepared for the project, including responses to the notice of preparation.
(7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project.
(8) Any proposed decisions or findings submitted to the decisionmaking body of the respondent public agency by its staff, or the project proponent, project opponents, or other persons.
(9) The documentation of the final public agency decision, including the final environmental impact report, mitigated negative declaration, or negative declaration, and all documents, in addition to those referenced in paragraph (3), cited or relied on in the findings or in a statement of overriding considerations adopted pursuant to this division.
(10) Any other written materials relevant to the respondent public agency’s compliance with this division or to its decision on the merits of the project, including the initial study, any drafts of any environmental document, or portions thereof, that have been released for public review, and copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency’s files on the project, and all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division.
(11) The full written record before any inferior administrative decisionmaking body whose decision was appealed to a superior administrative decisionmaking body prior to the filing of litigation.”
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 that development.” County of Orange v. Superior Court, (“County of Orange”) (2003) 113 Cal.App.4th 1, 8 (emphasis in origninal). Courts should interpret section 21167.6(e) in a manner that provides the fullest protection to the environment and promotes an informed and accountable government. Consolidated Irrigation District v. Superior Court, (2012) 205 Cal.App.4th 697, 717.
Section 21167.6(e) is not an abrogation of the attorney-client privilege or work product privilege, and those privileges are still applicable. California Oak Foundation v. County of Tehama, (2009) 174 Cal.App.4th 1217, 1221. The party claiming the attorney-client privilege or the attorney work-product doctrine has the burden of establishing the preliminary facts necessary to show that the privilege applies. Citizens for Ceres v. Superior Court, (“Ceres”) (2013) 217 Cal.App.4th 889, 911. This preliminary showing is normally made through declarations. Ibid.
If an item does not qualify under section 21167.6(e), its admissibility can be determined under the rules of extra-record evidence. Madera Oversight Coalition, Inc. v. County of Madera, (“Madera”) (2011) 199 Cal.App.4th 48, 63, disapproved on other grnds, Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, (2013) 57 Cal.4th 439. Extra-record evidence is generally not admissible for traditional mandamus challenging an agency’s quasi-legislative decision; review is confined to the record. Western States Petroleum Association v. Superior Court, (“Western States”) (1995) 9 Cal.4th 559, 576. That is, extra-record evidence admissible for administrative mandamus challenges to quasi-adjudicatory decisions under CCP section 1094.5(e) is not admissible for challenges to quasi-legislative decisions. Id. at 578. Extra-record evidence could only be admissible in those rare instances where (a) the evidence existed before the agency’s decision and (b) it was not possible in the exercise of due diligence to present it before the agency’s decision. Ibid. The Supreme Court left open the possibility that extra-record evidence may be admissible in challenging quasi-legislative decisions under unusual circumstances or for very limited purposes, but it can never be admitted merely to contradict the agency relied upon in making a quasi-legislative decision or to question the wisdom of the decision. Id. at 579.
The trial court makes determinations of the completeness of the administrative record. Madera, supra, 199 Cal.App.4th at 63. The trial court resolves disputes between the parties over what should be included in the administrative record without deference to the agency’s certification. Ibid.
- Statement of Facts
- Petitioner’s Evidence
On January 31, 2020, Jacqueline Ayer (“Ayer”), director of SORT, filed a request for the County to prepare the administrative record for the instant action. Ayer Decl., ¶5.
On March 13, 2020, the parties stipulated to a 45-day extension of the deadline to prepare the Record, that is until May 22, 2020. Ayer Decl., ¶6. The parties conferred several times over the content of the record during this time. Id. As they were not able to reach agreement, on May 21, 2020 the parties stipulated to a second extension to certify the record. Id. The parties continued to confer on the record. Id. On July 1, 2020, the parties stipulated to a third extension until July 15, 2020. Id.
Ayer participated in the meet and confer process. Ayer Decl., ¶8. On March 19, 2020, Ayer emailed the County’s counsel, Nichole H. Gordon, Esq. (“Gordon”) that internal agency emails are important to the record and it was unlikely SORT would agree to their omission. Id. On May 4, 2020, Ayer received a preliminary record index that consisted of approximately 327 individual records. Ayer Decl., ¶9. On May 8, 2020, Ayer emailed Gordon that the record was not complete and there were errors in the estimated cost. Ayer Decl., ¶10.
On May 11, 2020, Ayer emailed Gordon that the record did not include any internal communications and asked that certain internal communications be included. Ayer Decl., ¶11. Ayer emailed copies of the documents to Gordon later that day. Ayer Decl., ¶12.
On May 12, 2020, Ayer received an email from Gordon stating that the County had not agreed to include interdepartmental communications in the record and that Ayer had not made it clear that SORT wanted them in the record. Ayer Decl., ¶13. On May 13, 2020, Ayer emailed Gordon that the record will include interdepartmental communications. Ayer Decl., ¶14.
On May 18, 2020, Gordon emailed a proposed schedule that the County submit the record index to Ayer by June 1 and Ayer would provide a list of documents to be added to the record by June 15, 2020. Ayer Decl., ¶15. On June 1, 2020, Ayer received a draft record index from Gordon that indicated the main record index would consist of approximately 334 documents and the email index would consist of approximately 12,641 records. Ayer Decl., ¶16.
On June 4, 2020, Ayer emailed Gordon and asked that she confirm the completeness of the record. Ayer Decl., ¶17. On June 5, 2020, Gordon responded that, among other things, privileged communications were not included in the June 1 draft record index. Ayer Decl., ¶18. On June 8, 2020, SORT provided a preliminary list of documents that should be added to the record. Ayer Decl., ¶19. On June 15, 2020, SORT provided the comprehensive list of documents to be added to the record. Ayer Decl., ¶20.
On June 30, 2020, Ayer emailed the requested documents. Ayer Decl., ¶21. On July 14, 2020, Gordon responded, noting which documents had been added to the record and which had not. Ayer Decl., ¶22. Sometime after July 18, 2020, Gordon communicated the following: (1) the County will not include the KPCC interview in the record; (2) the County will not include the Draft Climate Action Plan (“CAP”) in the record; (3) the County removed AR63262-AR63450 from the originally certified record; and, (4) the County cannot locate any records indicating that OPR responded to the County’s CEQA request identified in AR26580. Ayer Decl., ¶23.
The County certified the record on July 10, 2020, without an agreement on its contents. Ayer Decl., ¶7; Taber Decl., ¶¶ 4-6, Exs. 1-17. SORT asserted that several relevant documents belonged in the record and the County disagreed, claiming the documents at issue were dated after the Board adopted the project. Id. On August 10, 2020, County certified an updated record adding some of the documents SORT requested, but also removing documents from the record certified on July 10, 2020. Id.
- Respondents’ Evidence
Based on Gordon’s review of the administrative record and the email chains included in Petitioner’s motion as Documents Nos. 8 through 14 and 16, it appears that all of the individual emails within these chains pre-dating the Board’s August 6, 2019 actions are already included in the administrative record. Gordon Decl., ¶7.
In response to a request from SORT that the County prepare the administrative record, on May 4, 2020 Gordon sent Ayer a proposed draft index of the record pursuant to LASC Local Rule 3.232(d)(1)(D). Gordon Decl., ¶8, Ex. 6. On May 11, 2020, Ayer responded to the draft index, requesting that the it be expanded to include all internal County email records, as well as seven records Ayer believed were missing from the index. Gordon Decl., ¶9, Ex. 6. Gordon sent Ayer a revised detailed index of the documents constituting the proposed administrative record, including internal agency emails, as well as the additional documents Ayer had requested. Gordon Decl., ¶10, Ex. 7.
On June 8, 2020, Gordon received a letter from Ayer labeled as “SORT Comments on draft CEQA Record Index (Case No. 20STCP00419)” containing a list of approximately 54 documents “in SORT’s Possession to be Added to the Record” and identifying eight other documents or categories of documents SORT contended should be included in the record, a total of approximately 62 documents or categories of documents. Gordon Decl., ¶11, Ex. 8. SORT’s June 8, 2020 letter did not indicate that SORT would be providing any additional comments or requests. Upon receipt of SORT’s June 8, 2020 letter, Gordon’s office began identifying and reviewing the listed items to evaluate their appropriateness for inclusion in the record. Id.
On June 15, 2020, Gordon received a second letter from Ayer entitled “SORT Index of Records to be Added to draft Record Index.” Gordon Decl., ¶12, Ex. 9. This letter requested inclusion of approximately 120 documents or categories of documents in the Administrative Record. Due to the description and presentation of the items, it was unclear whether the June 15, 2020 list supplemented or repeated the items contained on the June 8, 2020 list. Id.
Gordon’s office discerned that almost all of the approximately 62 documents identified in Ayer’s June 8, 2020 letter were included in the list attached to her June 15, 2020 letter. Id. Gordon’s office then began evaluating the additional items SORT requested to assess their appropriateness for inclusion in the administrative record and determined that approximately 81 of the approximately 120 documents SORT requested post-date the Board’s August 6, 2019 approval of the Sustainability Plan that is at issue in this litigation. Id.
On June 24, 2020, Gordon provided Ayer with detailed responses to each of the individual records requested by SORT and the rationale for these determinations. Gordon Decl., ¶13, Ex. 10. Gordon did not include records that post-dated the Board’s August 6, 2019 approval, and explained this to Ayer. Id. Gordon requested that Ayer send copies of a few items that Gordon’s office was not able to identify and explained that the County would update, finalize, and certify the administrative record as soon as possible after receiving these items. Id.
The County’s Chief Sustainability Officer (“CSO”) Gary Gero (“Gero”) certified the administrative record on July 10, 2020. Gordon Decl., ¶14. Gordon’s office sent notice and an electronic copy of the record to Ayer. Id.
On July 14, 2020, Gordon was served with notice that Alene M. Taber, Esq. (“Taber”) would be substituting in as SORT’s counsel of record. Gordon Decl., ¶15.
On July 16, 2020, Gordon appeared at a Trial Setting Conference (“TSC”) in Department 85. Gordon Decl., ¶16. During that appearance, Taber indicated she had not yet seen the administrative record and the parties agreed to a two-week continuance of the TSC. Id.
On July 29, 2020, Taber sent an email requesting that the County add 11 documents to the administrative record, including the documents now identified in SORT’s motion to augment as Documents Nos. 18 (Transcript of KPCC Interview with Gary Gero) and 19 (copy of March 2020 draft CAP). Gordon Decl., ¶17, Ex. 11. Taber’s request did not mention any of the other 53 documents SORT’s now seeks through its motion. Id.
On July 30, 2020, Gordon appeared at a second TSC at which Taber and Gordon agreed to another two-week continuance of the TSC to allow the County to consider SORT’s request for additional documents. Gordon Decl., ¶18.
Gordon responded to Taber’s request for additional documents, agreeing to incorporate all relevant requested documents that existed prior to the Board’s approval of the Sustainability Plan and declining to include records that post-date that approval, including the documents now identified in SORT’s motion to augment as Documents Nos. 18 and 19. Gordon Decl., ¶19, Ex. 11. On August 10, 2020, Gero certified an updated version of the administrative record that included the additional documents the County had agreed to include, and Gordon’s office sent the updated notice of certification to Taber that same day. Gordon Decl., ¶20.
On August 10, 2020, Gordon received an email from Taber arguing that documents that post-date the Board’s approval must be included because “despite the exercise of reasonable diligence, [they] couldn’t have been produced before the hearing” and noting, “The record index includes several pages of records that were created after the Board of Supervisors approved the Plan” (starting at around record 63284). Gordon Decl., ¶21, Ex. 12. Gordon examined all of the emails included in the certified administrative record that had been sent or received on August 6, 2019. Gordon Decl., ¶22. Gordon identified certain emails dated August 6, 2019 that were written after the Board acted on the Sustainability Plan earlier in the day. Id. The emails primarily consist of congratulatory remarks related to the Board’s approval and/or staff’s efforts to publicize the approval on the County’s website. Id. These records include the documents identified in SORT’s Motion as Documents Nos. 4, 5, and 7-17. Id.
Because the emails were all dated August 6, 2019, the “cut off” day for the County’s collection of records, they had been included in the record. Id. However, these records were not created until after the Board acted on the Sustainability Plan and Gordon removed them from the certified record. Id. Gordon also responded to Taber’s argument for inclusion of records that post-date the Board’s action, explaining that the exception for inclusion of records that could not have been produced before the hearing in the exercise of reasonable diligence “only applies to evidence that existed before the agency made its decision.” Id., Ex. 12.
On August 13, 2020, Gordon appeared at a third TSC at which Taber informed the court that the parties had not resolved all issues related to the administrative record. Gordon Decl., ¶23. Later that day, Taber sent Gordon an email stating her belief that “the documents at issue are required to be included as extra-record documents under the Western States Petroleum Assn. v. Superior Court, (1995) 9 Cal.4th 559.” Gordon Decl., ¶23, Ex. 13. Gordon responded that, while extra-record evidence is admissible in traditional mandamus cases challenging ministerial or informal administrative actions, that is not true in actions challenging quasi-legislative administrative actions like the one SORT challenges here. Gordon Decl., ¶24, Ex. 13.
- Analysis
A “project” is defined in CEQA as any activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment (1) undertaken directly by any public agency, (2) supported through contracts, grants, subsidies, loans or other public assistance, or (3) involving the issuance of a lease, permit, license, certificate, or other entitlement for use by a public agency. Pub. Resources Code §21065. The word “may” in this context means a reasonable possibility. Citizen Action to Serve All Students v. Thornley, (1990) 222 Cal.App.3d 748, 753. “Environment” means the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance. Guidelines, §21060.5.
In this lawsuit, SORT alleges that the Board’s adoption of the Sustainability Plan occurred without public notices, a hearing, findings, or a CEQA determination, and contends that it qualifies as a project under because it was an action taken by a public agency that may cause either a direct physical change in the environment or a reasonably foreseeable indirect change in in the environment. Mot. at 7.
The County argues that the Board adopted the Sustainability Plan on August 6, 2019 after an extensive public engagement, including 150 presentations and meetings with business, labor, environmental, advocacy, and other organizations, and 11 half-day workshops attended by 600 persons representing 350 organizations. The County describes the Sustainability Plan as an “aspirational strategic vision” that is unenforceable and does not supersede any County land use plans. County Counsel advised the County’s Chief Operating Officer that the Sustainability Plan is not a project under CEQA and that CEQA findings will be made for any implementing action. Ex. 1, p. 3.
Petitioner SORT seeks to augment the administrative record with (1) County documents which the County initially included in the record certified on July 10, 2020, but subsequently removed (Taber Decl., Exs. 4-17); (2) a transcript of a KPCC Public Radio interview with CSO Gero on August 6, 2019, the same day the Sustainability Plan was adopted by the County (Taber Decl., Ex. 18); (3) a copy of the County’s draft CAP released in May 2020 (Ayer Decl., Ex. 19); (4) County documents for the August 21, 2019 Regional Planning Commission (“RPC”) Meeting regarding implementation of the Sustainability Plan (Ayer Decl., Exs. 20-14); and (5) County documents pertinent to the List of Priorities alleged in the Petition. (Ayer Decl., Exs. 25-55.).
- Extra-Record Evidence
SORT argues that the documents may be admitted as extra-record evidence. Mot. at 9-10; Reply at 7-8.
Extra-record evidence is generally not admissible for traditional mandamus challenging an agency’s quasi-legislative decision; judicial review is confined to the record. Western States, supra¸9 Cal.4th at 576. Extra-record evidence that is admissible for administrative mandamus challenges to quasi-adjudicatory decisions under CCP section 1094.5(e) is not admissible for challenges to quasi-legislative decisions except in those rare instances where (a) the evidence existed before the agency’s decision and (b) it was not possible in the exercise of due diligence to present it before the agency’s decision. Id. at 578. The Supreme Court also left open the possibility that extra-record evidence might be admissible in challenging quasi-legislative decisions under unusual circumstances or for very limited purposes — noting that federal courts have allowed extra-record evidence for background information or for ascertaining whether the agency considered all the relevant factors — but concluded that such evidence could never be admitted merely to contradict the evidence relied upon by the agency in making a quasi-legislative decision or to question the wisdom of the decision. Id. at 579.
SORT contends that the Western States test is not as inflexible as the County contends, and that the documents at issue consist of the County’s own words expanding upon the meaning, purpose, and implementation of the Sustainability Plan and are not an attempt by SORT to create new evidence. Therefore, they are relevant and should be included as extra-record evidence. Mot. at 10.
As the County correctly notes (Opp. at 10-11), the Western States exception for inclusion of extra-record documents for a quasi-legislative decision is narrowly construed and one requirement is that the evidence in question must exist before the agency made its decision. See El Morro Community Assn. v. Cal. Dept. of Parks and Recreation, (“El Morro”) (2004) 122 Cal.App.4th 1341, 1358-62. SORT does not dispute that none of the documents in question existed prior to the Board’s decision.
Nor does SORT show an unusual circumstance or offer the evidence for a limited purpose. SORT merely contends that the documents were created by the County and are not offered for the gamesmanship issue with which Western States was concerned and that the court has discretion to include them. Mot. at 7, 10. [3] This is insufficient for inclusion of extra-record evidence. All of SORT’s post-decision documents concern the County’s implementation of the Sustainability Plan, which is not a relevant issue to whether, on the August 6, 2019 date the Board approved the Sustainability Plan, it was a CEQA project because it may cause either a direct physical change in the environment or a reasonably foreseeable indirect change in in the environment. See Guidelines 15378(a). The proffered evidence is not background information or evidence offered on whether the Board considered all factors; SORT only offers this evidence to show that the County is serious about implementing the Sustainability Plan. This is not relevant to the issue of a project and the documents are not admissible as extra-record evidence.
- Section 21167.6(e)(10)
SORT argues that section 21167.6 requires the inclusion of the documents in the record under subdivision (e)(10). Mot. at 8-9. SORT notes that the Legislature intended courts to avoid narrow application of the 11 categories of section 21167.6(e). San Francisco Tomorrow v. City and County of San Francisco, (“San Francisco Tomorrow”) (2014) 229 Cal.App.4th 498, 532. The 11 categories also are both mandatory and non-exclusive. Id. at 533. SORT argues that the catch-all of (e)(10) applies to all of the documents at issue. Reply at 6.
Section 21167.6(e)(10) provides:
“(e) The record of proceedings shall include, but is not limited to, all of the following items:…
(10) Any other written materials relevant to the respondent public agency’s compliance with this division or to its decision on the merits of the project, including the initial study, any drafts of any environmental document, or portions thereof, that have been released for public review, and copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency’s files on the project, and all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division.”
The County disputes that the documents fall within the meaning of section 21167.6(e)(10), arguing that documents that post-date an agency’s decision cannot be relevant to the decision.[4] Opp. at 7-8. The County asserts that because the only issue in CEQA litigation is whether the agency’s decision was supported by substantial evidence, the only relevant documents are those that existed before the public agency made its decision. Opp. at 8.
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 that development.” County of Orange, supra, 113 Cal.App.4th at 8 (emphasis in original). This means anything before the agency decision-maker in approving a project or determining the project’s compliance with CEQA, including documents prepared for prior iterations of the project. See id. at 10 (earlier staff reports and related documents were prepared for project compliance with CEQA).
Section 21167.6(e)(10)’s catch-all requires inclusion of any written materials relevant to the agency’s compliance with CEQA or its decision on the merits, giving as examples the environmental studies prepared for the project, relied upon for the project, or included in the agency files for the project. Each example is for documents that existed at the time of the agency’s decision. There can be no environmental document relevant to the agency’s CEQA compliance in approving a project that was prepared after the agency’s decision.
Section 21167.6(e)(10) cannot be interpreted to require the inclusion of documents showing how the County’s actions implementing the Sustainability Plan after the Board’s approval show that it is a project that should have been evaluated under CEQA. The determination whether an agency action is a project under CEQA is a forward-looking effort. The agency must take into account not just the proposed action, but all of the indirect “reasonably foreseeable” future actions and consequences that may follow the proposed action. Bozung v. Ventura County LAFCO, (1975) 13 Cal.3d 263, 283. “It is desirable that the precise information concerning environmental consequences which an EIR affords be furnished and considered at the earliest possible stage.” Id. at 283-84. Documents showing that the County erred in concluding at the time of approving the Sustainability Plan are not relevant to this issue.
As the County notes, none of the cases on which SORT rely holds that documents which post-date the agency decision must be included in the administrative record. Opp. at 9. Golden Door Properties, LLC v. Superior Court of San Diego County, (2020) 52 Cal.App.5th 837, concerns a discovery motion for pre-decision documents which the public agency was obligated to maintain under section 21167.6 and does not address documents which post-date the agency’s decision. San Francisco Tomorrow, supra, 229 Cal.App.4th at 533 addressed transcripts of hearings which “undisputedly occurred before the board’s decision” and were readily available to it.
In Madera, supra, 199 Cal.App.4th at 72, the board approved the project on December 8, 2008. The court of appeal affirmed the trial court’s decision to include two pages from a June 9, 2009 transcript because the defendants forfeited any opposition to it by not opposing their inclusion before the trial court. Id. The court also affirmed the trial court’s inclusion of a June 29, 2006 “Farm Bureau decision” which pre-dated the board’s December 8, 2008 project approval and EIR certification (id. at 59, 66) to show that the County knew that a contract did not create a water right for the Project’s source of water and that uncertainty should have been evaluated in the EIR. Id. at 60, 72. The appellate court assumed that the trial court added the Farm Bureau decision as written material relevant to the agency’s compliance with CEQA under section 21167.6(e)(10), not as extra-record evidence, and concluded that the defendants did not show the trial court was wrong. Id. at 73. The court did not hold that any documents post-dating the board’s decision must be included in the record.
In Town of Atherton v. California High-Speed Rail Authority, (2014) 228 Cal.App.4th 314, 338, the court of appeal addressed a dispute over the location of rails for a high-speed rail system connecting northern and southern California. Id. at 322. In evaluating a claim of federal preemption, the appellate court took judicial notice of a letter written several years after an EIR was certified to determine whether the Legislature intended CEQA to apply to the high-speed train. Id. 338. This judicial notice does not support SORT’s position because the letter was relevant to the Legislature’s intent in Proposition 1A for application of CEQA at all to the high-speed rail project. The letter was not admitted for purposes of determining whether the project complied with CEQA or as part of the record under section 21167.6(e)(10).
SORT has not shown that documents that post-dating the Board’s decision are relevant under section 21167.6(e)(10) because the documents did not exist, and were not before the Board, when it made the decision to approve the Sustainability Plan.
- Application to the Documents
SORT contends that individual analysis of each of the requested documents demonstrates that they belong in the record. Mot. at 10; Reply at 8.
- Documents Contained in the July Record That the County Subsequently Removed (Nos. 4-17)
SORT notes that the County unilaterally struck 206 pages from the previously certified July 2020 administrative record, reasoning that the documents were created after the Board’s August 6, 2019 approval. Mot. at 10; Taber Decl., Exs. 4-17. SORT argues that these documents are relevant because they constitute the County’s primary public statements regarding the Board’s action on the Sustainability Plan and intention to implement it immediately following adoption. Mot. at 11. SORT asserts the documents must be included pursuant to section 21167.6(e)(2) and (10), noting that some of the document existed before the County adopted the Plan and the remaining documents could not have been produced in the exercise of reasonable diligence before the Board hearing. Mot. at 11.
The County notes that it has decided to include Document No. 4 in the record and Document No. 6 already appears in the record. Gordon Decl., ¶6, Ex. 5. Opp. at 12-13. No further determination on these documents need be made by the court.
As for Documents 5 and 7-17, the County notes (Opp. at 13-14) that they were all drafted after the Board’s decision approving the Sustainability Plan. Gordon Decl., ¶22. As discussed ante, post-approval documents are not relevant for the purposes of section 21167.6(e)(10) and are not admissible as extra-record evidence.
This leaves SORT’s argument under section 21167.6(e)(2) which provides:
“(e) The record of proceedings shall include, but is not limited to, all of the following items:…
(2) All staff reports and related documents prepared by the respondent public agency with respect to its compliance with the substantive and procedural requirements of this division and with respect to the action on the project….
SORT’s argument that the documents must be included pursuant to section 21167.6(e)(2) also is unavailing because SORT has not demonstrated how emails acknowledging and celebrating the Board’s approval of the Sustainability Plan are staff reports and related documents. Opp. at 13. SORT appears to misinterpret section 21167.6(e)(2) to require inclusion of any staff report and related documents as opposed to a staff report concerning the agency’s compliance with substantive and procedural CEQA requirements. Only the latter must be included, not celebratory emails.
Documents No. 5 and 7-17 are not subject to inclusion in the record.
- KPCC Interview Transcript (No. 18)
SORT argues that the transcript of a radio interview with CSO Gero less than an hour after the Board’s adoption of the Sustainability Plan is relevant under section 21167.6(e)(9) and (10) because it constitutes a public statement reiterating the Board’s intent to directly implement the Plan immediately. Mot. at 14. SORT notes that the interview was planed long before the adoption of the Plan. Mot. at 14; Reply at 9-10.
There is no dispute that the radio interview and transcript did not exist prior to the Board’s approval of the Sustainability Plan. Contrary to SORT’s claim (Reply at 10), the fact that the interview was planned prior before the Board’s approval does not change its status as a post-approval document not subject to inclusion under section 21167.6(e)(10).
SORT also cannot establish that the interview transcript constitutes documentation of the final public agency decision within the meaning of section 21167.6(e)(9), which requires inclusion of “documentation of the final public agency decision” and gives examples of CEQA reports such as the EIR, mitigated negative declaration, and documents cited or relied upon in findings or statement of overriding consideration. The interview was conducted by an independent radio station was never submitted to the Board and never placed in the County’s files. The transcript is clearly not one of the enumerated types of CEQA documents and is not contemplated for inclusion under section 21167.6(e)(9).
The transcript (Document No. 18) is not subject to inclusion in the record.
- March 2020[5]Draft CAP (No. 19)
SORT asserts that a Draft CAP is relevant to the definition of the project and whether it was piecemealed, noting that several documents and correspondence related to the Sustainability Plan refer to the CAP and its inclusion in the Sustainability Plan. Mot. at 15; Taber Decl., Ex. 2. SORT argues that therefore the CAP is subject to inclusion pursuant to section 21167.6(e)(2) and (10). Mot. at 16; Reply at 10.
As the County notes (Opp. at 14-15), the CAP did not exist at the time the Board approved the Plan in August 2019 and is not a staff report or any of the other listed documents in section 21167.6(e)(2). Similarly, it is not subject to inclusion as extra-record evidence or under section 21167.6(e)(10).
SORT alleges the CAP is relevant to piecemealing. When multiple project components are contemplated, the agency must analyze them together in the project’s environmental review. Banning Ranch Conservancy v. City of Newport Beach, (2012) 211 Cal.App.4th 1209, 1223. An EIR must include an analysis of the environmental effects of future expansion if (1) it is a reasonably foreseeable consequence of the initial project and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project and its environmental effects. Id. at 1224. Applying this test, courts have required separate activities to be reviewed as one CEQA project where (1) the second activity is a reasonably foreseeable consequence of the initial project that will change the scope of the first project’s environmental impacts, (2) the second activity is a future expansion of the first activity that will change the scope of environmental impacts, or (3) both activities are integral parts of the same project. Paulek v. Department of Water Resources, (2014) 231 Cal.App.4th 35, 45-46.
As the County notes (Opp. at 15), the Petition does not include any allegations of piecemealing. Even if it did, the question is whether the Sustainability Plan requires CEQA review at all, not whether the CAP should be included in that review as part of a single project. The County provides evidence that the CAP is being developed as part of a separate planning effort, by a separate County department, has not been approved, and is expected to be completed at some point in the future. Gordon Decl., ¶¶ 4-5, Exs. 3, 4. See El Morro, supra, 122 Cal.App.4th at 1360–61 (mere fact that there were two EIRs for another project does not show piecemealing).
The Draft CAP (Document No.19) is not subject to inclusion in the record.
- August 21, 2019 RPC Meeting Documents (Nos. 20-24)
SORT argues that the documents relating to the RPC’s August 21, 2019 meeting are relevant to the definition of a project and fall under section 21176.6(e)(2) and (10). Mot. at 17-18; Reply at 10-11. SORT notes that its Petition specifically refers to the RPC meeting and the “List of Priorities” that the County developed for implementing the Sustainability Plan. Mot. at 17; Reply at 10-11.
These documents are not staff reports and related documents pursuant to section 21176.6(e)(2). The documents did not exist at the time of the Board’s approval of the Sustainability Plan and therefore are not subject to inclusion under section 21176.6(e)(10) or as extra-record evidence. Finally, SORT cannot bootstrap the RPC meeting documents into the record by referring to them in its Petition.
The RPC meeting documents (Documents No. 20-24) are not subject to inclusion in the record.
- Documents Pertinent to the County’s List of Priorities for Sustainability Plan Implementation (Nos. 25-55)
SORT argues that County’s emails discussing its List of Priorities for implementing the Sustainability Plan are relevant to the Petition’s assertion that the County is moving forward with implementation and should be included pursuant to section 21167.6(e)(2) and (10). Mot. at 17-18; Reply at 11.
The emails are also not subject to inclusion as extra-record evidence or under section 21167.6(e)(10), as it is undisputed that they did not exist before the Board’s decision. Again, SORT fails to demonstrate why emails post-dating the Board’s decision should be considered staff reports and related documents within the meaning of section 21167.6(e)(2). Finally, SORT cannot bootstrap these emails into the record simply because they may be relevant to allegations in the Petition.
The emails pertaining to the County’s List of Priorities for implementing the Sustainability Plan (Documents No. 25-55), are not subject to inclusion in the record.
- Conclusion
The motion to augment is denied.
[1] The County failed to lodge a courtesy copy of its opposition and SORT failed to lodge a courtesy copy of its reply in violation of the Presiding Judge’s First Amended General Order Re: Mandatory Electronic Filing. Both counsel are admonished to provide courtesy copies in all future filings. [2] All further statutory references are to the Public Resources Code unless otherwise stated. [3] SORT also suggests that the Sustainability Plan does not qualify as a quasi-legislative decision and lies on the continuum between a quasi-legislative and a ministerial decision for which extra-record evidence may be admitted where the facts are in dispute. Western States, supra, 9 Cal.4th at 559. Reply at 8. The court has not considered this argument, which is unsupported and made for the first time in reply. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333. In any event, the Board’s approval of the Sustainability Plan could hardly be described as ministerial such that extra-record evidence could be received. See El Morro, supra, 122 Cal.App.4th at 1345, 1359 (affirming denial of motion to augment record for project demolishing private beachfront mobilehome park and conversion to public campground, parking, and picnic facility). [4] Contrary to SORT’s assertion (Reply at 6), the County opposes inclusion of the documents pursuant to section 21167.6(e)(10). See Opp. at 8. [5] While SORT refers to the document as the “May 2020 CAP,” the document is dated March 2020. Ayer Decl., Ex. 19; Opp. at 14, n.5.