PREPARING A DEFENSIBLE ADMINISTRATIVE RECORD

Transcription

1 PREPARING A DEFENSIBLE ADMINISTRATIVE RECORD 350 Katherine E. Stone Lisabeth D. Rothman State Bar Certified Appellate Specialist Hatch & Parent, A Law Corporation Myers, Widders, Gibson, San Vicente Boulevard, Suite Jones & Schneider, L.L.P. Los Angeles, California Everglades Street Telephone: (310) Ventura, California Facsimile: (310) Telephone: (805) LRothman@HatchParent.com Facsimile: (805) Kewstone@aol.com

2 TABLE OF CONTENTS Page 1. Introduction Legal Requirements for Types of Administrative Records... 1 A. Traditional Mandamus... 1

3 B. Administrative Mandamus... 2 C. CEQA... 3 (1) Scope and Contents of the Record... 3 (2) Preparation of the Record... 8 D. Validation Proceeding... 9 E. Inverse Condemnation... 9 F. Other Claims (e.g., Declaratory Relief, Injunction) Legal Issues A. Contents of the Record B. Augmenting the Record C. Excluding Documents from the Record Practical Considerations Summary ii

4 iii

5 TABLE OF AUTHORITIES Page(s) Cases Aluisi v. County of Fresno...(1959) 159 Cal.App.2d Bay-Delta Programmatic EIR Cases... (JC No. 4152, Sacramento Superior Court) 8 Berlinghieri v. Dept. of Motor Vehicles...(1983) 33 Cal. 3d BP Alaska Exploration, Inc. v. Superior Court...(1988) 199 Cal.App.3d Browning-Ferris Industries v. City Council...(1986) 181 Cal.App.3d Buckhart v. San Francisco Residential Rent Stabilization and Arbitration Board v. McDonald...(1988) 197 Cal. App. 3d Building Code Action v. Energy Resources Conserv. & Dev. Comm n (1980) 102 Cal.App.3d 577 6, 17 California First Amendment Coalition v. Superior Court... (1998) 67 Cal.App.4th Candid Enterprises, Inc. v. Grossmont Union High School...(1985) 39 Cal.3d Carty v. City of Ojai...(1978) 77 Cal.App.3d 329 iv

6 2 Chaparral Greens v. City of Chula Vista... (1996) 50 Cal.App.4th Chavez v. Civil Service Comm n (1978) 86 Cal.App.3d Citizens for a Better Environment v. California Dept. of Food and Agriculture (1985) 171 Cal.App.3d v

7 TABLE OF AUTHORITIES (cont d) Page(s) Citizens for Quality Growth v. City of Mt. Shasta...(1988) 198 Cal.App.3d City of Los Angeles v. Superior Court... (1995) 40 Cal.App.4th City of Santa Cruz v. Local Agency Formation Commission... (1978) 76 Cal.App.3d 381 1, 6, 9, 13, 17 County of Orange v. Superior Court... (2003) 113 Cal.App.4th 1 5-7, 19 DeVita v. County of Napa... (1995) 9 Cal.4th Dominey v. Dept. of Personnel Admin....(1988) 205 Cal.App.3d 729 6, 17 Elysian Heights Residents Assn., Inc. v. City of Los Angeles...(1986) 182 Cal.App.3d 21 7 Ensign Bickford Realty Corp. v. City Council...(1971) 68 Cal.App.3d Foster v. Civil Serv. Comm n...(1983) 142 Cal.App.3d vi

8 Friends of Westwood, Inc. v. City of Los Angeles...(1987) 191 Cal.App.3d Gentry v. City Murietta... (1995) 36 Cal.App.4th Government Suppliers Consolidating Services, Inc. v. Bayh... (S.D. Ind. 1990) 133 F.R.D Grine II v. Coombs...(W.D. Pa. 1997) 1997 U.S. Dist. LEXIS vii

9 TABLE OF AUTHORITIES (cont d) Page(s) Hadley v. City of Ontario...(1974) 43 Cal.App.3d Harris v. City of Philadelphia...(E.D. Pa. 1995) 1995 U.S. Dist. LEXIS Harris v. County of Riverside...(9 th Cir. 1990) 904 F.2d Healing v. California Coastal Commission... (1994) 22 Cal.App.4th Hensler v. City of Glendale (1994) 8 Cal.4th , 14 Horn v. County of Ventura...(1979) 24 Cal.3d Hothem v. City and County of San Francisco...(1986) 186 Cal.App.3d Kawaoka v. City of Arroyo Grande...(9 th Cir. 1994) 17 F.3d 1227, cert. denied, 513 U.S Kennedy Wholesale, Inc. v. State Bd. Of Equalization...(1991) 53 Cal.3d viii

10 Larson v. State Personnel Bd.... (1994) 28 Cal.App.4th Lesher Communications, Inc. v. City of Walnut Creek...(1990) 52 Cal.3d Lockard v. City of Los Angeles...(1949) 33 Cal.2d Lucas v. South Carolina Coastal Council... (1992) 505 U.S ix

11 TABLE OF AUTHORITIES (cont d) Page(s) Marylander v. Superior Court... (2000) 81 Cal.App.4th Morgan v. Community Redevelopment Agency...(1991) 231 Cal.App.3d Mountain Lion Coalition v. California Fish & Game Comm n...(1989) 214 Cal.App.3d Mumaw v. City of Glendale...(1969) 270 Cal.App.2d Natural Resources Defense Council v. Fox...(S.D.N.Y. 1998) 1998 U.S. Dist. LEXIS North Dartmouth Properties, Inc. v. Dept. of Housing and Urban Development...(D. Mass. 1997) 984 F. Supp Pacifica Corp. v. City of Camarillo...(1983) 149 Cal.App.3d Park Area Neighbors v. Town of Fairfax... (1994) 29 Cal.App.4th Patterson v. Central Coast Regional Comm....(1976) 58 Cal.App.3d x

12 Pomona Valley Hospital Medical Center v. Superior Court... (1997) 55 Cal.App.4th Prentiss v. City of South Pasadena... (1993) 15 Cal.App.4th 85 2 Protect Our Water v. County of Merced... (2003) 110 Cal.App.4th , 13, 18 River Valley Preservation Project v. Metropolitan Transit Dev. Bd. (1995) 37 Cal.App.4th xi

13 TABLE OF AUTHORITIES (cont d) Page(s) Roberts v. City of Palmdale... (1993) 5 Cal.4th Rogers v. Superior Court... (1993) 19 Cal.App.4th Romero v. County of Santa Clara...(1970) 3 Cal. App. 3d Running Fence Corp. v. Superior Court...(1975) 51 Cal.App.3d Sierra Club v. Contra Costa County... (1992) 10 Cal.App.4th Stanislaus Audubon Society, Inc. v. County of Stanislaus... (1995) 33 Cal.App.4th State v. Superior Court...(1974) 12 Cal.3d 237 2, 12 State Water Resources Control Board Cases... (JC No. 4118, Sacramento Superior Court) 9 Strumsky v. San Diego County Employees Retirement Assn....(1974) 11 Cal.3d Times Mirror Co. v. Superior Court...(1991) 53 Cal.3d xii

14 Topanga Association for a Scenic Community v. County of Los Angeles.(1974) 11 Cal.3d Trans Union LLC v. FTC...(DDC 2001) 141 F.Supp.2d Western States Petroleum Association v. Superior Court of Los Angeles ( WSPA ) (1995) 9 Cal.4th , 14, 17 xiii

15 TABLE OF AUTHORITIES (cont d) Page(s) Yost v. Thomas...(1984) 36 Cal.3d Youngblood v. Board of Supervisors...(1978) 22 Cal.3d xiv

16 xv

17 xvi

18 xvii

19 xviii

20 Authorities Code of Civil Procedure sections 860, et seq... 1, 9 Code of Civil Procedure section Code of Civil Procedure section Code of Civil Procedure section Code of Civil Procedure section Code of Civil Procedure section (a) Code of Civil Procedure section (b)... 3 Code of Civil Procedure section (c)... 3, 5, 13 Code of Civil Procedure section (e)... 3, 14 Code of Civil Procedure section (c)... 5, 8 Code of Civil Procedure sections Code of Civil Procedure section 2018(b) Evidence Code section Evidence Code section xix

21 Government Code section xx

22 TABLE OF AUTHORITIES (cont d) Page(s) Government Code section Government Code section Government Code section 56107(c)... 9 Government Code section 6254(a) Government Code section 6254(k) Government Code section Government Code section 65009(b)(1)... 2 Government Code section (I)(4)... 2 Health & Safety Code section 33501(a)... 9 Health & Safety Code sections Public Resources Code sections 21000, et. seq Public Resources Code section Public Resources Code section , 5-6 Public Resources Code section (a)... 8 xxi

23 Public Resources Code section (b)...7-8, 19 Public Resources Code section (d)... 6, 19 Public Resources Code section (e)...5-7, Public Resources Code section (f) Public Resources Code sections xxii

24 Other Authorities TABLE OF AUTHORITIES (cont d) Page(s) 64 Opinion California Attorney General CEQA Guidelines section 15005(a)... 5 CEQA Guidelines section Los Angeles Superior Court local rule 9.24(j) Miscellaneous California Administrative Mandamus California Administrative Mandamus California Administrative Mandamus Kostka & Zischke,... Practice Under the California Environmental Quality Act 6-7 Osher and Wild, Deliberative Process Privilege Shields Agencies Deliberations, Los Angeles Daily Journal [August 20, 2002] Remy, Thomas, Moose & Manley, Guide to the California Environmental Quality Act [ Remy ]...5-7, xxiii

25 1. Introduction. This paper will discuss creating a defensible administrative record from the perspective of local agencies when they approve or deny projects. The types of actions encountered by cities requiring administrative records typically include mandamus actions challenging legislative decisions such as general and specific plan amendments and zoning amendments (C.C.P. 1085); adjudicatory actions such as tentative maps, variances, conditional use permits and coastal development permits (C.C.P ); and approvals governed by the California Environmental Quality Act (Pub. Res. Code 21000, et. seq. [ CEQA ]). The need for administrative records is not limited to mandate actions however. Validation proceedings and inverse condemnation actions may require preparation of an administrative record. Cases against cities often involve all these types of claims and, if brought by a landowner, may also be joined with an inverse condemnation claim and other claims for damages. Because the trial in these types of cases is often based exclusively on the administrative record, city attorneys should become involved in making the administrative record during the administrative process and supervise the preparation of the record for court proceedings. Of course, this approach is based on the usual role of the city as respondent in the litigation. Where the city is the petitioner, considerations concerning the scope of the record are different. This paper will discuss types of administrative records, legal issues and practical considerations. Except in the area of CEQA, there is very little statutory or case law on the contents, format or process for making an administrative record. Much of the information in this paper, therefore, is necessarily based on experience in handling various types of cases involving administrative records in courts throughout the state. 2. Legal Requirements for Types of Administrative Records. The administrative record plays an important role in many types of litigation challenging local agency decisions. The legal requirements for the administrative record vary with the type of agency action challenged. The most common legal proceedings are mandamus (mandate) cases which are governed by Code of Civil Procedure sections These rules apply to traditional mandamus and administrative mandamus. Special procedures for CEQA cases are contained in Public Resources Code sections Other types of cases, such as validation proceedings, Code of Civil Procedure sections 860, et seq., do not specify rules for the administrative record. A. Traditional Mandamus. 1

26 Traditional mandamus, Code of Civil Procedure section 1085, is the procedure for judicial review of local legislative and ministerial decisions. Legislative actions include the adoption or amendment of a general or specific plan (Yost v. Thomas (1984) 36 Cal.3d 561, 570); zoning (id.); incorporation and annexation (see, City of Santa Cruz v. Local Agency Formation Commission (1978) 76 Cal.App.3d 381, 386) and initiative measures (DeVita v. County of Napa (1995) 9 Cal.4th 763). Legislative actions establish rules or policies of general application. By contrast, ministerial actions involve little discretion or judgment and the public official merely applies objective standards to the facts. Ministerial decisions include issuance of a building permit (Prentiss v. City of South Pasadena (1993) 15 Cal.App.4th 85, 89; cf., Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259 [discretionary under city s code]); approval of a final subdivision map (Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 656); and approval of a second unit (Gov t Code (I)(4)). There are no special procedures for the preparation and certification of the administrative record in traditional mandamus proceedings. Where a legislative decision is challenged, there will normally have been an administrative proceeding, during which potential litigants are required to raise all factual and legal issues they intend to litigate. (See, e.g., Gov t Code 65009(b)(1).) In such cases, the trial will normally be limited to the administrative record. When legislation is adopted by initiative, however, there will not be an administrative record and the court may consider a variety of evidence such as ballot materials, the existing general plan, and the circumstances surrounding the election. The scope of judicial review of legislative decisions is extremely deferential. Courts may not overturn a legislative decision unless it is arbitrary, capricious, wholly lacking in evidentiary support or fails to conform to the procedures required by law. (See, e.g., Horn v. County of Ventura (1979) 24 Cal.3d 605, 612; Carty v. City of Ojai (1978) 77 Cal.App.3d 329, 333, n. 1.) There is no statutory requirements for a fair hearing and due process considerations generally do not apply to legislative decisions. (See, Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, ; Harris v. County of Riverside (9 th Cir. 1990) 904 F.2d 497, 502 [due process requirements only apply where landowner deprived of protected property interest].) Findings are not required unless required by a statute. (Ensign Bickford Realty Corp. v. City Council (1971) 68 Cal.App.3d 467, 473.) As such, the administrative record, from the agency s point of view, may be more limited than that for administrative mandamus. A reporter s transcript of the hearing, for example, may be excluded because the motives and statements of individual councilmembers are irrelevant. (Id. at 477.) The adopting resolution or ordinance should, however, demonstrate the legitimate governmental purpose for the legislation and make any required statutory findings, such as general plan consistency. Where a ministerial act is challenged, there is generally little or no administrative record because the planning commission or city council has taken no action. Therefore, evidence outside the record is generally admissible. (See, Western States Petroleum Association v. 2

27 Superior Court of Los Angeles ( WSPA ) (1995) 9 Cal.4th 559, 575.) B. Administrative Mandamus. Administrative mandamus, Code of Civil Procedure section is the exclusive remedy for review of adjudicatory decisions where a hearing is required by law. (State v. Superior Court (1974) 12 Cal.3d 237, 249.) Adjudicatory decisions are those where the local agency applies existing policy to the facts. (Pacifica Corp. v. City of Camarillo (1983) 149 Cal.App.3d 168, 176.) Code of Civil Procedure section only applies to a final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal... Such decisions include tentative subdivision maps (Horn, 24 Cal.3d 605, 614), variances (Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517), conditional use permits (Horn, 24 Cal.3d 605, 614), and coastal development permits (Patterson v. Central Coast Regional Comm. (1976) 58 Cal.App.3d 833, ). Due process and a fair hearing are required for an adjudicatory proceeding. (Horn, 24 Cal.3d 605, 612.) Findings in support of the decision are ordinarily required. (Topanga Association for a Scenic Community, 11 Cal.3d 506, ) The standard of judicial review is less deferential than for legislative decisions. The judicial inquiry includes whether there was a fair hearing and whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by findings or the findings are not supported by substantial evidence in the administrative record. (C.C.P (b).) Potential litigants are required to exhaust their administrative remedies and raise all issues, legal and factual, during the administrative process. (Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447.) Evidence outside the administrative record is generally not admissible. (C.C.P (e).) The statute sets forth some procedures for preparation of the record by the agency but not for certification. Accordingly, it is important that the administrative record be complete and accurately reflect the basis for the agency s decision in adjudicatory proceedings. A reporter s transcript of the hearing should normally be included. (See, Mumaw v. City of Glendale (1969) 270 Cal.App.2d 454, 458.) Arguably, Civil Procedure Code section (c) requires the agency to provide a verbatim record when the substantial evidence test is the applicable standard. (California Administrative Mandamus 6.8 at 155, CEB 3d ed ) A transcript may be constitutionally required where there is a claim of denial of due process or a fundamental vested right is involved. (See, Aluisi v. County of Fresno (1959) 159 Cal.App.2d 823, ) It is advisable to have a court reporter present for such proceedings (e.g., revocation of a use permit; disciplinary proceedings) to insure an accurate transcript. The city attorney should actively participate in preparing the findings to insure that Topanga and all statutory findings requirements are met. 3

28 C. CEQA. (1) Scope and Contents of the Record. Unlike statutes governing administrative or ordinary mandate cases, CEQA specifies the scope and contents of the administrative record to be prepared for litigation. Public Resources Code section provides in relevant part: Notwithstanding any other provision of law all of the following shall apply: * * * (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 4

29 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. (Emphasis added). When a CEQA statute employs the word shall, its provisions are mandatory, not permissive. 1 (See, Larson v. State Personnel Bd. (1994) 28 Cal.App.4th 265, 276; CEQA Guidelines 15005(a)[ Must or shall identified a mandatory element which all public agencies are required to follow ].) Hence, the key to applying this statute is the phrase Notwithstanding any other provision of law... all of the following shall apply. This phrase has the effect of limiting the applicability of a relevance test to the inclusion of documents in the record. (See, e.g., Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1148 n. 12 [The only relevance standard applicable under section (e) exists under subdivision (e)(10) which pertains to whether the document is relevant to either CEQA compliance or the accuracy of the administrative record ].) Section (e) operates as a floor, and establishes the minimum requirements for documents that must be included in the record. (County of Orange v. Superior 1 The parties always have the option to stipulate to exclude documents. 5

30 Court (2003) 113 Cal.App.4th 1, 8; Remy, Thomas, Moose & Manley, Guide to the California Environmental Quality Act [ Remy ], p. 619.) Issues concerning the administrative record in a CEQA action are procedural, not evidentiary because compilation of an administrative record is a ministerial task under section (County of Orange, 113 Cal.App.4th 1, 11.) The County of Orange Court s interpretation of section s scope is consistent with section s express adoption of the abuse of discretion standard set forth in Civil Procedure Code section (c): abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in light of the whole record. (C.C.P (c), emphasis added; see also, C.C.P (c) [Obligation lies with the public agency to prepare [t]he complete record of the proceedings ].) Without such a complete record the superior court cannot comply with Code of Civil Procedure section (Buckhart v. San Francisco Residential Rent Stabilization and Arbitration Board v. McDonald (1988) 197 Cal. App. 3d 1032, 1036, emphasis in original; see also, Berlinghieri v. Dept. of Motor Vehicles (1983) 33 Cal. 3d 392, 395; Remy, pp [The record must be produced in its entirety].) In a CEQA action, section (e) defines what constitutes the whole record. The County of Orange s interpretation of the broad scope of section is also consistent with section s admonition that courts not interpret this division in a manner which imposes procedural or substantive requirements beyond those explicitly stated. (Pub. Res. Code ; Chaparral Greens, 50 Cal.App.4th 1134, Under this standard, even superseded documents must be included in the record if they were circulated for public review. (County of Orange, 113 Cal.App.4th 1, 9-10; Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 154 [ The fact that a revised initial study was later prepared does not make the first initial study any less a record entry nor does it diminish its significance ]; Kostka & Zischke, Practice Under the California Environmental Quality Act ( Kostka & Zischke ), 23.69, p. 990; Remy, p. 626.) The broad statutory language and County of Orange s interpretation of it suggest that documents that were not publically circulated must also be included in the record. While the laundry list of required documents in section (e) (1)-(9) is fairly straightforward (see Kostka & Zischke, 23.69, pp ) 2, section (e)(10) s apparent catchall provision of 2 An EIR s reliance on source documents that are not included as appendices is a trap for the unwary. Such documents ordinarily are not and need not be included in the record. (Building Code Action v. Energy Resources Conserv. & Dev. Comm n (1980) 102 Cal.App.3d 577, 586.) However, if such studies or documents are part of the agency files or were made available to the public during the review process, their inclusion is mandatory. (See, Dominey v. Dept. of Personnel Admin. (1988) 205 Cal.App.3d 729, 738 n. 6; City of Santa Cruz, 76 Cal.App.3d 381, 391.) If their contents are relied upon or necessary to show that findings are supported by substantial evidence, their inclusion is necessary. (See, Sierra Club v. Contra Costa County (1992) 10 Cal.App.4th 1212, 1224.) 6

31 any other written materials relevant to the agency s compliance with this division or to its decision on the merits including... all internal agency communications is potentially problematic especially given the prevalence of communication. The breadth of this language is limited by the express requirement that such documents be relevant, and applicable privileges and other rules allowing for exclusion of documents. 3 (See Chaparral Greens, 50 Cal.App.4th 1134, 1148 n. 12 [Documents under subdivision (e)(10) must be relevant to either CEQA compliance or the accuracy of the administrative record ]; Kostka & Zischke 23.69, p. 990.) In addition, according to Remy, under basic rules of statutory construction, this language also must be reconciled with, and hence is limited by, the other provisions of section (d). (Remy, p. 622.) A literal interpretation of section (e)(10) s language that all internal agency communications including staff notes would eviscerate the provision which requires inclusion only of those draft environmental documents that were released for public review. All provisions must be harmonized and not rendered surplusage. (See Kennedy Wholesale, Inc. v. State Bd. Of Equalization (1991) 53 Cal.3d 245, [ The law shuns repeals by implication... Thus, to avoid repeals by implication we are bound to harmonize... provisions that are claimed to stand in conflict ], citations omitted; Remy, p. 622.) So for example, regardless of whether they are contained in the staff file, administrative draft documents circulated among staff and containing staff comments need not be included in the administrative record because they were not released for public review. (Remy, p. 622.) Despite the limiting language contained in section (e)(10), the court in County of Orange employed language that may be used to further broaden the scope of the statute s requirements when it said 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, 113 Cal.App.4th 1, 8.) Any attempt by petitioners to misapply this language to impermissibly expand the already broad scope of the statute can be thwarted by the statute s plain language which governs. (See, Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 543 [Courts cannot add to the statute or rewrite it to conform to an assumed intent that is not apparent in the language ]; accord Elysian Heights Residents Assn., Inc. v. City of Los Angeles (1986) 182 Cal.App.3d 21, 29; Pub. Res. Code [CEQA cannot be interpreted to impose requirements beyond those explicitly stated].) Moreover, County of Orange may be limited to those circumstances in which a project has been reapproved by an agency after issuance of a writ of mandate voiding previous project approvals. (See, County of Orange, 113 Cal.App.4th 1, 9-10.) Ultimately, the contents and scope of the record are within the discretion of the lead agency, not the petitioner. (See, County of Orange, 113 Cal.App.4th 1, 10, 13; Kostka & Zischke, 3 See section 3.C. infra. 7

32 23.69, p. 990.) The public agency has the duty to certify the record, and this duty is presumed to have been regularly performed. (Pub. Res. Code (b); Evid. Code 664; see also, Kostka & Zischke, 23.69, p. 992.) This presumption is conclusive in the absence of contrary proof. (See, Running Fence Corp. v. Superior Court (1975) 51 Cal.App.3d 400, 423; Romero v. County of Santa Clara (1970) 3 Cal. App. 3d 700, 705.) Because the lead agency is the respondent in CEQA cases and must defend the propriety of its decision, the reason for this requirement is clear. Failure to include all applicable documents that demonstrate the existence of substantial evidence supporting the agency decision and that the agency followed CEQA s substantive and procedural requirements can result in reversal of project approval or may prevent a court from ruling on an issue raised in the litigation since the record must contain matters on which a party relies. (See, Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364, ; City of Los Angeles v. Superior Court (1995) 40 Cal.App.4th 593, [Failure to provide a complete administrative record prevents a court from ruling on an issue raised in the litigation]; Mountain Lion Coalition v. California Fish & Game Comm n (1989) 214 Cal.App.3d 1043, 1051 n. 9 [Respondents have the obligation to insure the record contains the matter on which they rely ].) If the record is improperly narrow, the agency runs the risk that the court might find a CEQA violation where there is none because the evidence necessary to support the agency action is not before the court. (County of Orange, 113 Cal.App.4th 1, 13 [ [A]ny reduction in its (administrative record s) contents is presumptively prejudicial ]; Protect Our Water, 110 Cal.App.4th 362, 364 [ if it is not in the record, it did not happen ].) Accordingly, because the record must be certified before the statement of issues or opening brief is served (Pub. Res. Code (f)), it behooves the agency to err on the side of inclusiveness rather than omit documents it may otherwise be entitled to exclude. 4 (2) Preparation of the Record. CEQA does not require that the agency prepare the record. Rather, it provides three options: (1) the petitioner may request that the respondent agency prepare the record of proceedings relating to the subject of the action (Pub. Res. Code (a)); (2) the petitioner may prepare the record itself subject to agency certification of the record s accuracy (Pub. Res. Code (b)(2)); or (3) the parties may agree on an alternative method of record preparation (id.; see also, River Valley Preservation Project v. Metropolitan Transit Dev. Bd. (1995) 37 Cal.App.4th 154, 182; Citizens for Quality Growth v. City of Mt. Shasta (1988) 198 Cal.App.3d 433, ). the record. 4 As discussed infra, omission of a needed document may be corrected by a motion to augment 8

33 Obviously, if the petitioner elects to prepare the record, the petitioner cannot add documents not contained in the record maintained by the agency. The main reason petitioners elect to prepare the record is to reduce the cost or to expedite the process if the agency is understaffed. In CEQA cases, petitioners are responsible for the cost of preparing the record whether or not they elect to prepare it themselves. (River Valley Preservation Project, 37 Cal.App.4th 154, 180; see also, C.C.P (a) [ Except where otherwise prescribed by statute, the costs of preparing the record shall be borne by petitioner ], (c) [ The local agency may recover from the petitioner its actual costs for transcribing or otherwise preparing the record ].) Costs of record preparation are not limited to copying and transcription costs for a hearing transcript, but also include all reasonable costs incurred such as reviewing, organizing, and indexing the record. (River Valley Preservation Project, 37 Cal.App.4th 154, ) Hence, the petitioner must pay attorney and paralegal time or time spent by agency staff and consultants with specialized knowledge relevant to the task so long as the costs are necessary and reasonable. (See, id.; Citizens for Quality Growth, 198 Cal.App.3d 433, ; Pub. Res. Code (f).) Such costs may even include scanning the documents onto CD Rom disks if the size of the record warrants. 5 CEQA requires the party preparing the record to strive to do so at reasonable cost in light of the scope of the record. (Pub. Res. Code (f).) Petitioners must pay these costs up front as a condition for obtaining the record. (See, C.C.P (a).) The prevailing party may recover the expense of preparing the record as taxable costs. (Id.) D. Validation Proceeding. Validation proceedings conducted pursuant to Code of Civil Procedure section 860, et seq., are in rem proceedings commenced by an agency to validate a type of quasi-legislative decision which under any other law is authorized to be determined pursuant to this chapter or by an opponent of the decision to challenge it. (C.C.P. 860, 863.) Types of decisions subject to validation include bonds, warrants, contracts, obligations, and evidences of indebtedness (C.C.P. 864), Local Agency Formation Commission determinations regarding 5 Although the issue has not yet been decided on appeal, Superior Court judges in CEQA cases have determined that the cost of transferring a voluminous record onto disk is part of the record preparation costs that must be borne by petitioners. (Bay-Delta Programmatic EIR Cases (JC No. 4152, Sacramento Superior Court) [Court determined that computerized record was necessary and cost not excessive because the Court s need for a complete and accessible administrative record supersedes the individual parties preferences concerning the content and preparation of the record especially when the Court must decide whether the administrative decision is supported by the evidence (December 10, 2001 ruling)]; State Water Resources Control Board Cases (JC No. 4118, Sacramento Superior Court) [February 23, 2001 ruling upheld $80,000 cost of transferring 47 box administrative record to disks).] 9

34 changes of organization, reorganization, or spheres of influence (Gov t Code 56103), and decisions concerning redevelopment plans (Health & Safety Code 33501(a)). Because validation proceedings are based on quasi-legislative actions, judicial review is limited to an examination of the record before the decisionmakers to test for sufficiency with legal requirements. (Morgan v. Community Redevelopment Agency (1991) 231 Cal.App.3d 243, 258.) The contents of the record for validation proceedings are comparable to that for other quasilegislative decisions unless specified by statute. For example, the form of objections to redevelopment plans and applications for sphere of influence determinations and annexations are specified by statute (see, Health & Safety Code ; Gov t Code 56105), and obviously should be included in any administrative record. In addition, although LAFCO determinations are quasi-legislative (City of Santa Cruz, 76 Cal.App.3d 381, 388), judicial review is based on the substantial evidence standard (Gov t Code 56107(c)). The administrative record for a challenge to a LAFCO decision, therefore, should be broad in scope as for a quasiadjudicatory decision, but may also contain documents that were not publically disclosed. (City of Santa Cruz, 76 Cal.App.3d 381, 388, 391, 392.) While extra-record evidence ordinarily is prohibited, if challenges to the validity of the agency s decision are predicated on allegations of fraud or other claims for which evidence was or could not be presented to the agency, extra record evidence or discovery is more likely to be allowed. (See, e.g., Morgan, 231 Cal.App.3d 243, ) E. Inverse Condemnation. To bring an as applied regulatory taking claim, a landowner must timely challenge the application of the regulation to the property by administrative mandamus. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 7.) In Healing v. California Coastal Commission (1994) 22 Cal.App.4th 1158, 1170, the court held that review of the administrative record by petition for administrative mandamus is not a substitute for a court trial of the regulatory takings issues raised by the denial of a development permit. Citing Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, the court held the takings issue could not be resolved in the administrative proceeding by relying on the validity of the Coastal Act. [W]e believe that a court is required to consider the nature as well as the legitimacy of the state's interest together with the nature and extent of its impact on the owner's use of his land. (Id. at p. 676.) To resolve this issue, evidence must be considered. The legitimacy of the public interest involved, how much it is furthered by the regulatory actions at issue, the extent of the public benefit obtained or expected, and the degree that the [owner s] property rights and reasonable investment-backed expectations have been impaired are all factors which lie at the heart of the takings inquiry. These things typically cannot be assessed properly without a factual record. (McDougal 10

35 v. County of Imperial, supra, 942 F.2d at p. 680.) Accordingly, the mere fact that the regulation at issue has a legitimate public purpose is not a sufficient reason to deny compensation to the property owner whose land is rendered useless by the regulation. Instead, the agency s obligation to pay just compensation is to be determined by a balancing of the competing interests articulated in Lucas and McDougal, a process which necessarily requires a trial. As a practical matter, there is no way a landowner can make the appropriate record at the administrative proceedings at which his permit application is denied. (Healing, 22 Cal.App.4th 1158, ) The court also noted that the Coastal Commission has limited powers. (Id. at 1178.) By contrast, local governments have broad police powers. (Candid Enterprises, Inc. v. Grossmont Union High School (1985) 39 Cal.3d 878.) Shortly after the court of appeal s decision in Healing, the Supreme Court decided Hensler, 8 Cal.4th 1. The Court held: The impact of a law or regulation on the owner s right to use or develop the property cannot be assessed until an administrative agency applies the ordinance or regulation to the property and a final administrative decision has been reached with regard to the availability of a variance or other means by which to exempt the property from the challenged restriction. A final administrative decision includes exhaustion of any available review mechanism. Utilization of available avenues of administrative relief is necessary because the court cannot determine whether a regulation has gone too far unless it knows how far the regulation goes. (Id. at 12.) The Court reasoned: If the alleged taking is a regulatory taking, i.e., one that results from the application of zoning laws or regulations which limit development of real property, however, the owner must afford the state the opportunity to rescind the ordinance or regulation or to exempt the property from the allegedly invalid development restriction once it has been judicially determined that the proposed application of the ordinance to the property will constitute a compensable taking. The owner may do so, where appropriate, by a facial challenge to the ordinance, but in most cases must seek a variance if that relief is available and then exhaust other administrative and judicial remedies. The facial challenge may be through an action for declaratory relief (Agins v. City of Tiburon (1979) 24 Cal.3d 266, 273 [157 Cal.Rptr. 372, 598 P.2d 25]). The latter, an as applied challenge to the development restrictions imposed by the administrative agency, may be properly made in a 11

36 petition for writ of administrative mandamus to review the final administrative decision (Code Civ. Proc., ) and that action may be joined with one for inverse condemnation. A declaratory relief action also may be joined with an action in inverse condemnation. (State of California v. Superior Court (1974) 12 Cal.3d 237, 251 [115 Cal.Rptr. 497, 524 P.2d 1281].) Damages for the taking may be sought in an administrative mandamus action (Code Civ. Proc., 1095), or, if the plaintiff seeks a jury trial, in the joined inverse condemnation action. (Id. at ) The Court held that the trial court is able to resolve the taking claim in the mandate proceedings. In some cases, all of the evidence necessary to establish a taking claim may have been presented in the administrative proceeding. If it was not possible for the landowner to present that evidence, it may be introduced in the mandate proceeding. Subdivision (e) of Code of Civil Procedure section permits the introduction of additional evidence that is relevant to a challenge to the administrative action if the evidence could not have been produced or... was improperly excluded at the hearing before the administrative agency. Thus, the trial court is able to resolve the taking claim in the mandate proceeding. (Id. at 15.) While noting that in some cases the administrative agency is not competent to decide whether its own actions constitute a taking (id. at 15-16) and the landowner may not be afforded a full and fair opportunity to present evidence relevant to the taking issue (id. at 16), the Court held: A judicial determination is available in the mandate proceeding, however, if the administrative action is challenged on the basis that it is a compensable taking, the hearing did permit full litigation of the facts relevant to the takings issue, and any additional issues are litigated before the court. Because a taking of property is alleged, the court must accord the owner de novo review of the evidence before the agency in ruling on the taking claim. (Ibid.) It is therefore advisable in some cases to permit the landowner the opportunity to make a record during the administrative process, including the swearing of witnesses and limited direct and cross examination. The local agency may wish to adopt procedures for such proceedings which are similar to personnel or revocation proceedings. As indicated in Hensler, if the court decides the takings issue in the mandate proceeding, extra record evidence may be admitted. (Id. at 15.) 12

37 In any event, it is important to insure that the administrative record demonstrates the evidentiary basis for the decision including detailed findings based on substantial evidence and the nexus for any mitigation. Environmental impact reports are helpful for documenting the basis for the agency decision. F. Other Claims (e.g., Declaratory Relief, Injunction). Declaratory relief is the proper means to challenge the constitutionality or interpret a regulation. (State v. Superior Court, 12 Cal.3d 237, 251.) A facial takings challenge to a regulation may be made through an action for declaratory relief and may be joined with a complaint for damages. (Hensler, 8 Cal.4th 1, 14-15) Injunctive relief is a remedy not a cause of action. Frequently, a cause of action for injunctive relief is joined with a mandate action; it is usually superfluous. Temporary provisional relief may be appropriate if the agency threatens to change the status quo. Extra record evidence may be admitted to show irreparable harm in a temporary restraining order proceeding. 3. Legal Issues. A. Contents of the Record. 6 The contents of the record depend on the type and origin of the mandate case. For example, in Administrative Procedure Act ( APA ) cases, the record consists of the pleadings, all notices and orders issued by the agency, any proposed decision by the administrative law judge, the final decision, a transcript of all proceedings, the exhibits admitted or rejected, the written evidence, and any other papers concerning the case. (Gov t Code ) For non- APA cases, the same basic contents should be provided. (California Administrative Mandamus 6.6 at 152.) A challenge to the agency decision predicated on a challenge to the sufficiency of the evidence requires inclusion of the entire administrative record regardless of whether judicial review is conducted under the substantial evidence test (i.e., administrative mandate) or the independent judgment test (i.e., independent judgment test applied when fundamental right is at issue). Under the independent judgment test, the court exercises independent judgment in evaluating the evidence and finds the agency abused its discretion if the findings are not 6 Because the contents of the record in CEQA actions are so specific, they are addressed separately in section C2. 13

38 supported by the weight of the evidence. (C.C.P (c); Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.) The court cannot fulfill this task and uphold the agency decision without the entire record. No statute specifies the contents that constitute the entire record. For quasi-adjudicatory decisions in which the court applies the substantial evidence test, the court must determine if the findings are supported by substantial evidence in light of the whole record. (C.C.P (c).) This standard militates in favor of a comprehensive record that is not defined by statute. 7 In addition to the items identified above, the record ought to include all staff reports, documents circulated publically or publically available, and documents considered by the decision makers. Because of the statutory language, courts may be, and have been, reluctant to uphold the agency s decision without the entire record before it. (See, e.g., Protect Our Water, 110 Cal.App.4th 362.) Ostensibly, petitioner bears the burden to present a record demonstrating the absence of substantial evidence. (See, Hothem v. City and County of San Francisco (1986) 186 Cal.App.3d 702, 705; Foster v. Civil Serv. Comm n (1983) 142 Cal.App.3d 444, 453.) As a practical matter, however, the court will not uphold the agency s decision if it decides the record lacks substantial evidence to support it. (See, Protect Our Water, 110 Cal.App.4th 362.) The court may order a new hearing for the purpose of providing an adequate record for judicial review. (See, Chavez v. Civil Service Comm n (1978) 86 Cal.App.3d 324, 332; Hadley v. City of Ontario (1974) 43 Cal.App.3d 121, 127.) It thus behooves the agency to err on the side of completeness. For quasi-legislative decisions, the statutes provide no guidance for the contents of the administrative record. Because a public hearing, even if held, is not required for such decisions, the record can contain studies, reviews and reports prepared by staff for the decisionmakers that were not made publically available or presented at the hearing. (See City of Santa Cruz, 76 Cal.App.3d 381, 391, 392.) For quasi-legislative decisions, the agency decision-makers need not act only on input received at the hearing. (Id. at 388.) B. Augmenting the Record. Evidence outside the administrative record is generally inadmissible to challenge the validity of a local agency s legislative or administrative decision, especially in CEQA cases. (WSPA, 9 Cal.4th 559, 565; C.C.P (e).) In WSPA, the Court explained: 7 A complete evidentiary record is unnecessary under limited circumstances such as a challenge based solely on an issue of law which appears on the face of the decision or the agency lacked jurisdiction over the subject matter. (California Administrative Mandamus 10.4 at 350.) 14

39 We conclude that the substantial evidence standard of review prescribed by this statute is analogous to the substantial evidence standard of review applied by appellate courts to evaluate the findings of fact made in trial courts. Accordingly, just as appellate courts generally may not consider evidence not contained in the trial record when reviewing such findings, courts generally may not consider evidence not contained in the administrative record when reviewing the substantiality of the evidence supporting a quasi-legislative administrative decision under Public Resources Code section (Id. at 565.) There is an exception to the general rule where there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing. (C.C.P (e); WSPA, 9 Cal.4th 559, 578.) Evidence outside the record is admissible in traditional mandamus proceedings that challenge or seek to compel a ministerial act where the facts are in dispute. (WSPA, 9 Cal.4th 559, 576.) In such cases, there is generally no administrative record because the agency has not held a hearing. If a petitioner can show bias, fraud, corruption so that a fair trial was denied, the record may be augmented. (See, Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93.) A s discussed in section 2E, evidence outside the record may be permitted in a mandate proceeding involving a takings claim. (Hensler, 8 Cal.4th 1, 15.) Evidence outside the record is generally admissible on issues other than the validity of the local agency s decision. These issues include: standing exhaustion of remedies indispensable party (real party in interest) TRO - injunction (irreparable harm) laches mootness attorney s fees C. Excluding Documents from the Record. All documents pertinent to the litigation contained in agency files need not be included in the administrative record. Privilege and other legal bases for excluding documents from production or provision to the public operate to exclude them from an administrative record as well. Documents relevant for inclusion in an administrative record are subject to all privileges applicable to agency communications, and can and should be excluded if privileged. (See, e.g., Evid. Code 1040; Gov t Code 6254(k).) Depending on the type of action at issue, documents 15