It is well known that when the lead agency is the prevailing party in CEQA litigation, the agency may recover its costs of preparing the administrative record. But if the plaintiff elects to prepare the administrative record and the lead agency is still the prevailing party, may the agency recover its costs for providing the materials for the administrative record? St. Vincent’s School for Boys v. City of San Rafael, — Cal.Rptr.3d —, 2008 WL 711736, Cal.App. 1 Dist., March 18, 2008, reveals that the answer is “yes” if the plaintiff did not act reasonably to conserve costs.
St. Vincent’s School applied for an annexation and prezoning for a project consisting of 766 residential units and retail/office space on 835 acres within the City’s unincorporated sphere of influence.
In 2003, the City Council denied the application. The school sued the City on the grounds that the City’s denial violated the City’s Housing Element.
Rather than have the City prepare the administrative record, the school elected to prepare it. The City turned over to the school 20 boxes, consisting of 2,208 documents and 58,000 pages. Inasmuch as the 20 boxes contained few emails, the school submitted a Public Records request asking for all emails stored on the hard drive of any City employee. After the City produced the emails, the school made fifteen further demands for documents. When the City produced less than two inches of paper in response, the school still was not satisfied, and demanded an explanation.
Fifteen months after the City delivered the 20 boxes, the City certified the administrative record.
The trial court ruled in favor of the City on the merits, and awarded the City $30,000 for its cost incurred in assembling materials for the administrative record and for retrieving emails.
By way of background, when a CEQA action is filed, the plaintiff must either (1) request that the agency prepare the administrative record or (2) elect to prepare the administrative record itself. The parties also may agree to an alternative method of record preparation. Public Resources Code § 21167.6(b)(2)).
The Court of Appeal noted that the prevailing party in CEQA litigation may recover as costs the amount it spent in preparing the administrative record. But the court added that those costs must be reasonable in light of the scope of the record.
The court upheld the trial court’s award of $30,000 in costs. The court held that when the plaintiff elects to prepare the administrative record in CEQA litigation, and the lead agency is the prevailing party, the lead agency may recover the costs that it incurred in providing the materials for the administrative record if the plaintiff did not act reasonably to conserve costs.
The court pointed out that here, the school made no effort to conserve costs. Rather, the school caused the City to go through its entire computer system in response to an extremely broad request for all writings relating in any way to the property. Not a single email produced in response to the school’s request supported any of its claims, the court stressed. As further evidence that the school acted unreasonably, the court observed that the administrative record should be certified within 60 days (Public Resources Code § 21167.6(b)(1)), but here the record was not certified until fifteen months after the City delivered the 20 boxes.
Turning to the merits of the case, the court held that a Housing Element need not demonstrate that the housing units contemplated by the Housing Element will actually be constructed. The court also held that a city may not place planning and zoning obstacles in the way of actual development of the housing units contemplated by the Housing Element. Here, however, there was no evidence that the City had placed any obstacles in the way of developing housings units.