In CEQA litigation, the party challenging the project can either request that the agency prepare the record of proceedings (“Record”), or prepare the Record itself, subject to certification by the lead agency. In either case, the party preparing the Record must strive to do so at reasonable cost, and a prevailing party who prepared the Record may recover the costs of doing so.
In Coalition for Adequate Review v. City and County of San Francisco (September 15, 2014, A135512) — Cal.App.4th —- [14 Cal. Daily Op. Serv. 10,898], petitioners challenged a general plan amendment and environmental review for a development project. Petitioners elected to prepare the Record, but the City and County of San Francisco (“City”) only partially certified the Record, finding it omitted statutorily required documents. After unsuccessfully attempting to come to an agreement with Petitioners that the City would augment the Record at the time it filed its opposition, the City moved to supplement the Record. Petitioners opposed the motion, asserting their right to control the Record, and claiming the materials the City sought to add were irrelevant, duplicative, and violated the City’s statutory duty to control record preparation costs. The trial court granted the City’s motion as to most documents, but excluded documents duplicative of those already contained in the Record prepared by Petitioner. The trial court specifically found that the City’s effort to supplement did not violate the statutory duty to control Record preparation costs.
After prevailing on the merits of the case, the City filed a memorandum of costs, seeking $64,144 for “administrative record, professional messenger, and service” related to the supplement. Petitioners argued the City was precluded from seeking to recover such costs because Petitioners had elected to prepare the record themselves under Public Resources Code section 21167.6(b)(2). The trial court found that since the City sought to supplement the Record, the City and not Petitioners should pay for the cost of the supplement. The trial court also denied costs on the ground an award would “chill any desire by members of the general public to seek court review of important civic undertakings.” The City appealed.
The appellate court found that Petitioners’ election to prepare the Record should not require the public agency to proceed based on an incomplete Record. The language of Public Resources Code section 21167.6(e) mandates what must be included in the Record. The court found that omission of required materials prejudices the agency, not the petitioner, because the agency must point to evidence in the Record to support its decision. The court found in this case that because the Petitioners had elected to prepare the Record, they had the responsibility to prepare a statutorily complete Record and to the extent that Petitioners’ Record was incomplete, the City had to augment it, Therefore, the City was entitled to recover the reasonable costs of its efforts to complete the Record.
The appellate court also rejected the trial court’s “chill” analysis, explaining that CEQA expressly provides that the parties – not the public agency – are to pay for record preparation costs, implementing a “different, but equally important policy-that public monies should not be used to fund CEQA challenges brought by private parties.”
The appellate court thus found the trial court erred in denying the supplemental Record preparation costs to the City and remanded to the trial court for further proceedings. The appellate court provided guidance to the trial court on each category of costs claimed by the City. It found that costs for the labor of assembling the record, messenger services transporting record material, and copies of excerpts of record could be recoverable. Unfortunately for public agencies, however, the court denied the City’s ability to recover paralegal labor costs to review the proposed Record for certification and to prepare supplemental materials. The court stated that “this sort of review is a chore public agencies face in every case in which the petitioner elects to prepare the record.” Thus, although a prevailing public agency may recover for the cost to supplement a Record, the task of determining whether the Record is complete in the first instance remains the responsibility of the public agency and must be paid for by CEQA lead agencies.
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