1 2 3 4 5 6 7 8 9 10 11 12 M. CHRISTINE DAVI, SBN 178389 City Attorney CITY OF MONTEREY City Hall Monterey, California 93940 Telephone: (831) 646-3915 Facsimile: (831) 373-1634 Email: davi@ci.monterey.ca. us SABRINA V. TELLER, SBN 215759 GWYNNE B. HUNTER, SBN 293241 REMY MOOSE MANLEY, LLP 555 Capitol Mall, Suite 800 Sacramento, CA 95814 Telephone: (916) 443-2745 Facsimile: (916) 443-9017 E-mail: steller@rmmenvirolaw.com Attorneys for Respondents CITY OF MONTEREY Exempt from Filing Fees Pursuant to Government Code Section 6103 13 14 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF MONTEREY 15 TURN DOWN THE LIGHTS, 16 17 Petitioner, 18 v. 19 CITY OF MONTEREY, 20 Respondent. 21 22 CASE NO. M116731 MOTION TO STRIKE EXTRA-RECORD DOCUMENTS Hearing Date: February 5, 2016 Time: 9:00 a.m. Dept.: 1, Salinas Filing Date of Action: March 22, 2012 23 24 26 Ill 27 Ill II I
1 TABLE OF CONTENTS 2 Page 3 Table of Contents..... 4 Table of Authorities... 5 6 NOTICE OF MOTION AND MOTION TO STRIKE... 1 11 1 7 8 9 10 11 12 13 14 15 MEMORANDUM OF POINTS AND AUTHORITIES.... I. INTRODUCTION... II. STATEMENT OF FACTS... III. PROCEDURAL HISTORY.... IV. ARGUMENT.... A. Judicial Review under CEQA is Limited to Evidence in the Administrative Record.... B. The City's Approval of the Project was not a Ministerial or Inf01mal Agency Action, and the General Rule Prohibiting Extra-Record Evidence Applies Here.... 1 1 2 3 4 4 6 16 17 18 19 20 v. C. The Augment Documents Relating to the Friendly Plaza Lighting Project are Irrelevant and Inadmissible..... D. The Augment Documents Consisting of Documents Submitted After the Project Approval are Irrelevant and Inadmissible Extra-Record Evidence.... CONCLUSION.... 11 13 15 21 22 23 24 26 27 1
1 2 TABLE OF AUTHORITIES California Cases 3 Page(s) 4 Browning-Ferris Indus. v. City Council 5 (1986) 181 Cal.App.3d 852... 5 6 Cadiz Land Co., v. Rail Cycle LP 7 (2002) 83 Cal.App.4th 74... 5 8 Carrancho v. Cal. Air Resources Bd. (2003) 111 Cal.App.4th 15... 6, 8 9 1 o City of Carmel-by-the-Sea v. Bd. of Supervisors (1986) 183 Cal.App.3d 229... 5 11 Coalition for Clean Air v. City of Visalia 12 (2012) 209 Cal.App.4th 408... 13 13 El Morro Community Assn. v. Cal. Dept. of Parks and Recreation 14 (2004) 122 Cal.App.4th 1341... 5, 14 15 Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357... 5 16 Friends of the Old Trees v. Cal. Dept. of Forestry & Fire Protection 17 (1997) 52 Cal.App.4th 1383... 5, 8, 10, 14 18 Kronsberg v. Milton J Wershow Co. 19 (1965) 238 Cal.App.2d 170... 1 20 Magan v. County of Kings (2002) 105 Cal.App.4th 468... 9 21 22 Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885... 12 23 Robinson v. City and County of San Francisco 24 (2012) 208 Cal.App.4th 950, 955... 5, 10 Sacramento Old City Assn. v. City Council 26 (1991) 229 Cal.App.3d 1011... 5 27 San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. 11
1 (2006) 139 Cal.App.4th 1356... 10, 13 2 Save Our Carmel River v. Monterey Peninsula Water Management Dist. 3 (2006) 141 Cal.App.4th 677... 5, 8 4 Save Our Plastic Bag Coalition v. City of Manhattan Beach 5 (2011) 52 Cal.4th 155... 14, 15 6 7 8 California Cases (cont.) Page(s) 9 Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612... 5 10 11 Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481... 8,13 12 Tomlinson v. County of Alameda 13 (2012) 54 Cal.4th 1... 9, 10 14 15 Tostevin v. Douglas (1958) 160 Cal.App.2d 321... 1 16 Western States Petroleum Association v. Superior Court 17 (1995) 9 Cal.4th 559... passim 18 Wilson v. Hidden Valley Municipal Water Dist. 19 (1968) 6 Cal.App.2d 271... 7 20 21 22 23 24 26 27 111
1 2 California Statutes 3 Page(s) 4 5 6 7 Code of Civil Procedure section 1085.... 1094.5.... 1, subd. (a)(3).... 1, subd. (a)(5).... 5 5 1 1 8 9 Evidence Code section 350.... 6 10 Public Resources Code 11 12 13 section 21000.... 21167.6, subd. (b)(2).... 21167.6, subd.(e).... 21167.6, subd. (e)(5).... 21168.5.... 2 3 10, 12 13 5, 14 14 California Regulations 15 California Code of Regulations, Title 14, 16 "CEQA Guidelines" section 15060... 17 15061... 15062, subd. (a)... 18 15302... 15352, subd. (a.)... 19 15357... 20 15369... 9 9 10, 13 2,3 8 7 7 21 22 23 24 26 27 IV
1 NOTICE OF MOTION AND MOTION TO STRIKE 2 TO THE COURT, ALL PARTIES, AND THEIR COUNSEL OF RECORD: 3 PLEASE TAKE NOTICE that on February 5, 2016, at 9:00 a.m. in Department 1 ofthis Court 4 located at 240 Church Street, Salinas, California, Respondent City of Monterey will and hereby does move 5 this Court to strike pages 584-1005 from the augmented administrative record ("Augment Documents") 6 submitted by Petitioner Turn Down the Lights. This motion is brought pursuant to Code of Civil 7 Procedure section 436, which allows the Court to strike out all or any part of any pleading not drawn or 8 filed in conformity with the laws of this state, the court rules, or an order of the court. Additionally, the 9 Court has inherent power apart from statute to strike a pleading filed in disregmd of established procedural 10 requirements or that is otherwise violative of orderly judicial administration. (Kronsberg v. Milton J. 11 Wershuw Co. (1965) 238 Cal.App.2d 170, 173; Tostevin v. Douglas (1958) 160 Cal.App.2d 321, 331; see 12 also Code Civ. Proc., 1, subds. (a)(3) and (5) [court has the power to provide for the orderly conduct 13 of proceedings and to control the conduct of all persons in any manner connected with a judicial 14 proceeding].) This motion is also brought in accordance with the Court's October 3, 2013, Order 15 following the hearing on Petitioners' Motion to Augment, which allowed Respondent City to bring a 16 subsequent motion to strike documents the Court allowed to be added to the record. 17 This motion is based on the following Memorandum of Points and Authorities and on all other 18 matters that the Court deems relevant. 19 20 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION 21 Respondent City of Monterey ("City") moves to strike all documents Petitioners Tum Down the 22 Lights added to the administrative record of proceedings ("record") certified by the City (AR 1 584 to AR 23 1005) ("Augment Documents") and subsequently relied upon by Petitioner in its briefs. The Augment 24 Documents are in-elevant to the City's discretionary approval of the Street and Tunnel Lighting Replacement Project that is the subject of Petitioner's challenge and inadmissible as evidence offered to 26 27 1 Citations to the administrative record are noted by "AR" and the relevant page number(s).
1 challenge the City's determination that the project was exempt from the California Environmental 2 Quality Act ("CEQA") (Pub. Resources Code, 21000 et seq.). Most importantly, the Augment 3 Documents were not before the City staff or City Council when they took the actions challenged in this 4 case, and therefore, for the Court to consider them in evaluating the merits of Petitioner's arguments 5 would directly contradict the California Supreme Comi's holding in Western States Petroleum 6 Association v. Superior Court (1995) 9 Cal.4th 559 ("WSPA"). Indeed, Petitioner's introduction of the 7 Augment Documents only after failing to exhaust any available administrative remedies or to submit any 8 evidence to the City at the administrative level is precisely the kind of tactic that WSPA's prohibition on 9 extra-record evidence is aimed at preventing. Accordingly, this Court should strike the Augment 10 Documents from the record and strike or reject all of Petitioner's arguments based on those documents. 11 II. STATEMENT OF FACTS 12 The Monterey City Council approved the Street and Tunnel Lighting Replacement Project (the 13 "project") on November 1, 2011, during a regularly scheduled City Council meeting. (AR 2, 7, 24.) The 14 project consisted of replacing the City's existing high-pressure-sodium street and tunnel light bulbs with 15 LED and induction lights, respectively. (AR 40.) The project was conceived as an economically feasible 16 way to help make the City more energy-efficient, and it will help to bring the City into compliance with 17 State goals and requirements regarding municipal greenhouse gas emissions. (AR 39.) 18 Prior to the November 1, 2011 City Council Meeting, the City provided regular notice to the 19 public that the project was being considered and that the City had determined that the project was 20 exempt from CEQA under the "Class 2" categorical exemption (Cal. Code of Regs., tit. 14, 15302 21 [hereinafter, the "Guidelines"].) (AR 38-41.) The project was listed as item number 7 on the public 22 meeting agenda as a "public appearance" item. (AR 44.) The agenda explained that the City Council 23 accepts public comments on any item on the agenda. (AR 45.) The agenda and council's agenda report 24 were made available to the public according to the City's regular notice requirements. (AR 38-41, 44-46.) The agenda repmi explained the project in detail, explicitly stating that "[t]he City's Planning, 26 Engineering, and Environmental Compliance Division determined that [the] project is exempt from 27 CEQA regulations under Aiiicle 19, Section 15302." (AR 39.) During the meeting, City staff made a 2
1 presentation about the project and answered questions from the Council. (AR 7, 12-, 26-36, 38-41.) 2 Following the staff presentation and discussion of the project, the Mayor opened the floor to public 3 comments on the item. (AR 7, 23.) There were no requests to speak. (Ibid.) The discussion was returned 4 to the Council, which unanimously approved the project. (AR 2, 24.) The City began implementing the 5 project on January 2, 2012. (AR 229.) The City filed the optional Notice of Exemption for the project 6 with the State Office of Planning and Research on February 21, 2012. (AR 1.) 7 III. PROCEDURAL HISTORY 8 On March 22, 2012, Petitioner filed a Petition for Writ of Mandate, challenging the City's 9 determination that the project was exempt from CEQA review under Guidelines section 15302. 10 Petitioner elected to prepare the administrative record of proceedings under Public Resources Code 11 section 21167.6, subdivision (b)(2), and subsequently submitted documents to the City for consideration 12 for certification. The City refused to certify Petitioner's initially proposed record in part because it 13 contained website pages and documents regarding an unrelated City project (the "Friendly Plaza lighting 14 project") that the City had considered in September and October of 2009. The City also did not agree to 15 the inclusion in the record of several documents that did not exist at the time the City made its 16 exemption dete1mination and approved the project on November 1, 2011, or were never provided to the 17 City by any member of the public prior to project approval. The City certified the complete record of 18 proceedings that excluded the disputed documents and lodged it with the Cami on July 3, 2013. The 19 583-page record included all relevant evidence that was in the City's possession at the time of the City's 20 approval of the project and its determination that the Project was exempt from CEQA. 21 On July 23, 2013, Petitioner filed a motion to augment the certified record with three sets of 22 documents 2 (the "Augment Documents") totaling 422 pages that had not been presented to the City prior 23 to project approval, did not relate to the project, or had not even been created until after approval. The 24 documents consisted of: (1) city webpages and comments regarding an unrelated lighting project-some 26 2 Though Petitioner "Augmented Record" no longer divide these documents into three sets in the Augmented Record, they are the same pages in the same order as presented with the Motion to 27 Augment. Therefore, for ease of reference, the City will refer to these documents as they were originally grouped: Exhibits A (AR 584-675), B (676-856), and C (857-1005). 3
1 dating more than a decade prior; (2) post-approval, post-implementation comments on the project from 2 members of the public; and (3) irrelevant general studies and information about lighting. The City 3 opposed this motion on the basis that the long-standing general rule limiting judicial review in CEQA 4 cases to evidence in the administrative record at the time of project approval applied here. The City 5 further explained the project approval was not a ministerial or informal agency action that would 6 potentially warrant admission of extra-record evidence. Nor were the Augment Documents subject to 7 one of the narrow exceptions to this rule. Petitioner argued this was not a typical CEQA case, and also 8 that because certain documents were in the City's possession before project approval, they must be 9 included in the record. Petitioner argued the 583-page record was insufficient without these documents. 10 The Court granted the motion to augment with the caveat that a motion to strike the Augment 11 Documents could be heard concmtently with a later hearing on the merits. After that order, the City filed 12 a petition for writ of mandate with the Sixth District Court of Appeal, requesting the Court of Appeal 13 direct this Comi to vacate its order granting the motion to augment and enter an order denying the 14 motion in its entirety. The City argued that administrative records are limited to materials considered by 15 decision makers in reaching their decision, subject to very limited exceptions that did not apply here. 16 The Court of Appeal summarily denied the City's petition without explanation. The City now submits 17 this Motion to Strike the Augment Documents pursuant to the Court's order on the motion to augment 18 the record. 19 20 A. IV. ARGUMENT Judicial review under CEQA is limited to evidence in the administrative record. 21 It is well-established that judicial review in cases brought under CEQA is limited to review of 22 the evidence that was before the agency when it made its challenged decisions. (WSPA, supra, 9 Cal.4th 23 559. In WSPA, the state Supreme Comt established the general rule that extra-record evidence is not 24 admissible in traditional mandamus actions challenging an agency's quasi-legislative administrative 26 27 4 MOTION TO STRJKE EXTRA-RECORD DOCUMENTS
1 decision. 3 (Id. at p. 576.) Rather, judicial review in such cases is strictly limited to the evidence in the 2 administrative record. (Ibid.) Furthermore, the record includes only the evidence that was before the 3 agency when it made its challenged decision. (Id. at p. 573, fn. 4.) All other evidence is considered 4 "extra-record" evidence and, subject to very limited exceptions, is not admissible. (Id. at p. 576.) This 5 restriction ensures that courts do not "engage in independent fact finding rather than engaging in a 6 review of the agency's discretionary decision." 4 (Friends of the Old Trees v. Cal. Dept. of Forestry & 7 Fire Protection (1997) 52 Cal.App.4th 1383, 1391.) 8 Numerous courts have applied WSPA's mle prohibiting extra-record evidence to CEQA cases. 9 (See, e.g., Eureka Citizens for Responsible Governmentv. City of Eureka (2007) 147 Cal.App.4th 357, 10 367 [denying appellants' motion to "augment" the administrative record with materials that were not 11 presented to or considered by city council in reaching challenged decision]; Sacramento Old City Assn. 12 v. City Council (1991) 229 Cal.App.3d 1011, 1032, fn. 13 [supplemental EIRnot admissible because it 13 was not before decision-makers prior to or at the time of their decision]; Schaeffer Land Trust v. San 14 Jose City Council (1989) 215 Cal.App.3d 612, 624, fn. 9 [declaration regarding traffic analysis not 15 admissible in CEQA action because court's "review is limited to issues in the record at the 16 administrative level"]; City of Carmel-by-the-Sea v. Ed. of Supervisors (1986) 183 Cal.App.3d 229, 249, 17 fn. 11 [subsequent EIR not admissible "since it was not part of the administrative record"]; Browning- 18 Ferris Indus. v. City Council (1986) 181 Cal.App.3d 852, 861 [declarations, expert reports, and 19 transcript of hearing by separate agency not admissible in action challenging EIR because not in 20 administrative record]; El Morro Community Assn. v. Cal. Dept. of Parks and Recreation (2004) 122 21 Cal.App.4th 1341, 1358-1362 (El Morro) [affirming trial court's decision to deny motion to augment 22 23 3 I Although WSPA involved a traditional mandamus action under CCP 1085 challenging a quasilegislative decision, the rule also applies to administrative mandamus against quasi-judicial decisions 24 brought under CCP 1094.5. (Cadiz Land Co., v. Rail Cycle LP (2002) 83 Cal.App.4th 74, 120.) 4 I A governmental agency's dete1mination that a particular project is exempt from compliance with CEQA requirements is subject to judicial review under the abuse of discretion standard in Public 26 Resources Code section 21168.5. Abuse of discretion is established ifthe agency has not proceeded in a manner required by law or if the dete1mination or decision is not supported by substantial evidence. (See 27 Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, 955; Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 693.) 5
1 record with post-decisional documents because documents were not relevant to agency's compliance 2 with CEQA].) These cases are consistent with the basic premise that only relevant evidence is 3 admissible in court. (Evid. Code, 350.) 4 There are limited exceptions to the rule prohibiting extra-record evidence. But just as it did in its 5 motion to augment the record, in its Opening Brief Petitioner fails to explain why any of the exceptions 6 might apply here. None do. Moreover, the Supreme Court in WSPA made clear that, even when extra- 7 record evidence is admissible under one of the very limited exceptions, "extra-record evidence can never 8 be admitted merely to contradict the evidence the administrative agency relied on in making a quasi- 9 legislative decision or to raise a question regarding the wisdom of that decision." ( WSP A, supra, 9 10 Cal.4th at p. 579, italics added.) Yet Petitioner relies on the Augment Documents in its Opening Brief 11 for that very purpose. Therefore, the Court should grant the City's motion to strike the Augment 12 Documents because they are not properly part of the record and WSP A forbids this Court from 13 considering or relying on them in support of the arguments made by Petitioner. 14 15 B. The City's approval of the project was not a ministerial or informal agency action, and the general rule prohibiting extra-record evidence applies here. 16 This case presents a typical CEQA challenge to an agency's discretionary determination that a 17 project is categorically exempt from CEQA. As such, it fits squarely within the "unbroken line of cases 18 hold[ing] that, in traditional mandamus actions challenging quasi-legislative administrative decisions, 19 evidence outside the administrative record 'extra-record evidence' is not admissible." (Carrancho v. 20 Cal. Air Resources Bd. (2003) 111 Cal.App.4th 15, 1269.) There is nothing unique about this case that 21 would remove judicial review outside of the general rule prohibiting extra-record evidence. 22 In the hearing on the Motion to Augment, Petitioner contended the rule prohibiting extra-record 23 evidence should not apply here because the City's determination that the project was exempt from 24 CEQA was allegedly an "informal action," made without a public hearing or an opp01iunity to present evidence at the administrative level. (Transcript of Hearing on Motion to Augment, pp. 4, 7, attached as 26 Exh. A to Deel. of Sabrina V. Teller in Support of Motion to Strike.) Petitioner was wrong on all points. 27 6
1 Petitioner's argument is based on the general statement in WSP A that although extra-record 2 evidence is generally inadmissible in traditional mandate cases challenging quasi-legislative 3 administrative decision, "[the Court] will continue to allow admission of extra-record evidence in 4 traditional mandamus actions challenging ministerial or informal administrative actions." (9 Cal.4th at p. 5 576.) In excluding informal and ministerial administrative actions from the bar on extra-record evidence, 6 the Supreme Court highlighted the fact that, unlike quasi-legislative administrative decisions, ministerial 7 and informal actions are not entitled to judicial deference. (Id. at p. 575-576.) Moreover, the Court was 8 persuaded that "the administrative record developed during the quasi-legislative process is usually 9 adequate to allow the courts to review the decision without recourse to such evidence." (Id. at p. 575.) In 10 contrast, admission of extra-record evidence is often necessary in informal actions "because there is 11 often little or no administrative record in such cases." (Ibid.) 12 This case does not involve a ministerial action by the City. Rather, Petitioner challenges the 13 City's quasi-legislative decision to approve the project based on its determination that the project was 14 exempt from CEQA. In general, quasi-legislative actions are political in nature; they involve "the 15 exercise of discretion governed by considerations of public welfare." (Wilson v. Hidden Valley 16 Municipal Water Dist. (1968) 6 Cal.App.2d 271, 0.) They are also generally self-generated by 17 public agencies. The City's actions regarding the project fit this definition. 5 (See Guidelines, 15357 18 [definition of "discretionary project"].) Ministerial actions, on the other hand, involve "little or no 19 personal judgment by the public official as to the wisdom or manner of carrying out the project." 20 (Guidelines, 15369.) "A ministerial decision involves only the use of fixed standards or objective 21 measurements, and the public official cannot use personal, subjective judgment in deciding whether or 22 how the project should be carried out." (Ibid.) Here, the City Council exercised its judgment on 23 November 1, 2011, regarding whether to approve the contract for the lighting project at issue. The City 24 26 5 I Indeed, the fact that the Council opened the matter to public comment at the public hearing demonstrates that the decision was not a ministerial one, because if it were ministerial, the existence of 27 any public objections or requests for modification would be irrelevant to the determination of whether the project meets "fixed standards or objective measurements." (Guidelines, 15369.) 7
1 dete1mined that the project was exempt from CEQA and approved the project based on the evidence in 2 the administrative record at that time. (AR 7, 12-, 26-36, 38-41.) 3 Nor was the City's action an "info1mal agency action." Although the Court in WSPA did not 4 define the characteristics of an "informal" agency action, courts have consistently held that an agency 5 action is not informal when the agency allows the opportunity for public comment. The City provided 6 that opportunity here. Cases since WSP A have rejected claims the approval at issue was ministerial or an 7 informal ifthere was an opportunity for public input, even where a hearing was not required. (See, e.g., 8 Carrancho, supra, 111 Cal.App.4th at pp. 1269-1270 [although there was no hearing, the agency 9 provided opportunity for input from the public]; Save Our Carmel River, supra, 141 Cal.App.4th at pp. 10 699-700 [declaration of city planner supporting the application of categorical exemption was 11 inadmissible extra-record evidence, although no hearing on exemption was required]; Friends of the Old 12 Trees, supra, 52 Cal.App.4th at p. 1392 [extra-record evidence inadmissible because, although a hearing 13 was not required by law, there were numerous opportunities for public input].) 14 Here, the City's determination that the project was exempt from CEQA cannot be considered a 15 ministerial or informal action because the City provided an oppmiunity for the public to comment on the 16 project and to submit evidence into the record. The City Council unanimously approved the project on 17 November 1, 2011, at its regularly scheduled meeting after hearing a presentation from staff, engaging 18 in a dialogue with staff about the project, and inviting members of the public to comment. (AR 2, 7, 24.) 19 No one stepped forward to comment about the project. The Council then approved a resolution awarding 20 the contract for the Project. (AR 2, 7, 12-14, 24.) "Approval," for purposes of CEQA, "means the 21 decision by a public agency which commits the agency to a definite course of action in regard to a 22 project intended to be can-ied out by any person." (Guidelines, 15352, subd. (a.) No particular foim of 23 approval is required under CEQA. (See Stockton Citizens for Sensible Planning v. City of Stockton 24 (2010) 48 Cal.4th 481, 506.) Awarding the contract for the project committed the City to a definite course of action regarding the project. The City thereby formally approved the project at the November 26 1, 2011, City Council meeting. 27 8
1 The November 1 meeting was a "public hearing" for purposes of CEQA. The term "public 2 hearing" is not a term of art under CEQA-it simply means a hearing that is open to the public. Not only 3 was the meeting was open to the public, public participation was encouraged. (AR 7, 12, 44-46.) In their 4 oral argument on the motion to augment, Petitioner's counsel claimed the City did not provide notice or 5 a public hearing. But despite the Court's line of inquiry directed at this contention, Petitioner's counsel 6 could not explain why the City Council meeting was not a "public hearing" and how the meeting agenda 7 and agenda report did not provide proper notice. (Exh. A to Teller Deel., pp. 8-16.) Most importantly, 8 Petitioner's counsel could not point to any specific notice or hearing requirements, in CEQA or any 9 other statute, with which the City failed to comply. Petitioner claimed this lack of notice was due to the 10 fact that "the City did not hold a public hearing under the City's own rnles"-yet, when prompted by the 11 Comi, Petitioner's counsel could not point to any specific City rule. (Exh. A to Teller Deel., p. 19.) In 12 fact, there is no rule requiring the City to have individually notified each person in Monterey that it was 13 approving a contract to replace City lights. 14 Nor is there any requirement that the City provide any particular kind of notice when it 15 determines that a project is exempt from CEQA. An agency need not follow any particular procedure to 16 determine that a project is exempt, and there are no CEQA provisions requiring agencies to provide 17 notice of such determinations. (Tomlinson v. County of Alameda (2012) 54 Cal.4th 1, 290.) An agency 18 need not provide the public with any opp01iunity to review, or hold a public hearing on, its exemption 19 determination. (See Guidelines, 15060, 15061; see also Magan v. County of Kings (2002) 105 20 Cal.App.4th 468, 477 [even where an exemption is contested, an agency need not provide a hearing on 21 the record].) Although not required to do so under CEQA, the City approved this project at a public 22 hearing and provided notice of its exemption determination. (AR 7, 24, 38-41, 44.) Petitioner could have 23 presented any evidence to the City objecting to the new lights or the exemption determination before the 24 Council made its decision, but no one did. Petitioner's reliance on the Augment Documents is a transparent attempt to get around its failure to exhaust available administrative remedies, which could 26 have easily been done by providing the disputed documents to the City before project approval. 27 (Tomlinson, supra, 54 Cal.4th at p. 290; WSPA, supra, 9 Cal.4th at p. 578.) 9
1 The City was also not required to include its exemption determination in the meeting agenda. 2 (See San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley 3 Unified School Dist. (2006) 139 Cal.App.4th 1356, 1385-1386 (San Lorenzo).) There is no requirement 4 that an agency provide notice to the public that it has determined that a project is exempt, ever. 5 (Guidelines, 15062, subd. (a); Robinson, supra, 208 Cal.App.4th at p. 961 ["there is no requirement 6 that an agency put its exemption decision in writing at any time"] [internal formatting omitted].) By 7 providing notice of its exemption determination in its council agenda report, the City did more than what 8 is required by law. Moreover, this report was certainly sufficient to put every member of the public on 9 notice that City staff had determined the project was exempt from CEQA and that the Council might 10 agree with that determination and approve the Project on November 1, 2011. (Tomlinson, supra, 54 11 Cal.4th at p. 290.) Again, the fact that the City also filed the optional Notice of Exemption is of no 12 consequence. (Ibid.) 13 Moreover, the certified record developed at the administrative level for the City's actions is 14 adequate for judicial review. The record is 583 pages long and contains hundreds of documents. The 15 scope of documents is inclusive (ranging back at least to October 2009, when the City first contemplated 16 applying for the state energy efficiency grants that funded the project [AR 300-323]) and complies with 17 Public Resources Code, section 21167.6, subdivision ( e ), the section of CEQA specifying the contents of 18 an administrative record. The record certified by the City includes all evidence relevant to the City's 19 approval of the project and its determination that the project is exempt from CEQA (i.e., it includes all 20 relevant evidence that was before the City at the time it considered and approved the project). (See 21 Friends of the Old Trees, supra, 52 Cal.App.4th at p. 1391 [court rejected claim that agency's decision 22 made as a result of a proceeding which did not require the taking of evidence was "informal,'' observing 23 that the agency's decision "was not made in a bureaucratic vacuum leaving an inadequate paper trail, as 24 the 600-plus page administrative record demonstrates"].) In sum, there is nothing unusual about this case that wmtants expanding judicial review beyond 26 the documents in the City's files at the time the Council approved the contract for new streetlights. This 27 case is a simple challenge to the City's discretionary decision to approve the project. The City's decision 10
1 was not a ministerial or informal action, and the certified administrative record is complete and adequate 2 for the Court to review the City's decision. Therefore, the general rule prohibiting extra-record evidence 3 applies, and the Court should grant the City's motion to strike the Augment Documents. 4 5 c. The Augment Documents relating to the Friendly Plaza Lighting Project are irrelevant and inadmissible. 6 The documents Petitioner added to the record at pages 584 to 675 (Exhibit A of the Augment 7 Documents) should not be included in the record or relied upon by the Court in considering Petitioner's 8 arguments at pages 10 and 23 of the Opening Brief. These documents were not before the City when it 9 made its decision on the challenged light replacement project, and are irrelevant to that decision. 10 It is true that the documents relating to the Friendly Plaza Lighting Project (AR 584-634) and 11 pages from the City's website related to the National Historic Landmark District Survey (AR 635-675) 12 were in the City's files prior to the City Council's approval of the project, but that is not the standard for 13 whether documents should be included in an administrative record for a particular project. Not every 14 document that was in the City's files at the time it approved the project belongs in the administrative 15 record for this specific project. The law is clear that judicial review in CEQA cases is limited to review 16 of the evidence that was before the agency when it made its challenged decision. ( WSP A, supra, 9 17 Cal.4th 559; Pub. Resources Code, 21167.6, subd. (e).) 18 The Friendly Lighting Plaza Project and the National Historic Landmark District Survey have 19 nothing to do with the project at issue here. The Friendly Plaza Lighting Project refers to the City's 20 consideration oflighting in and around Friendly Plaza. (AR 584-634.) The Augment Documents contain 21 snippets from the City's files related to that project from 2002 and 2009. (Ibid.) The City's actions with 22 regard to that separate project were not timely challenged and are not being challenged now. Similarly, 23 the National Historic Landmark District Survey is an entirely separate project that is not being 24 challenged and is completely irrelevant to this case; that survey does not once refer to lighting. (AR 635-675.) There is no evidence that any of the documents relating to those different projects were presented 26 to the City, considered by the City, or otherwise before the City when it approved the street lighting 27 project that Petitioner challenges now. Therefore, they do not belong in the record. 11
1 Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 2 Cal.App.4th 885 (Porterville) is instructive. There, the respondent city adopted a mitigated negative 3 declaration (MND) for a single-family home subdivision project. The trial court took judicial notice of 4 an EIR previously prepared for the city's General Plan. On appeal, the real party in interest argued the 5 trial court erred in using the contents of the General Plan EIR to assess whether the record contained 6 substantial evidence supporting petitioner's arguments. (Id. at pp. 894-895.) The court agreed, finding 7 the EIR constituted extra-record evidence that was not part of the administrative record before the city 8 when it decided to adopt the MND and approve the project. (Id. at p. 895.) As the court explained, there 9 was no evidence in the record that that MND was tiered from the General Plan EIR, or that the EIR was 10 utilized or consulted in preparing the MND. The EIR was not referenced during the public hearing or 11 considered by the city council prior to the MND's adoption. (Id. at p. 894.) 12 Here too, there is no evidence in the record indicating any of the Augment Documents at pages 13 584 to 675 were utilized, consulted, or otherwise relied upon by the City in approving the challenged 14 project. Further, no one referenced those documents during the public hearing, and there is no evidence 15 indicating that any member of the City Council considered any of those documents prior to the approval 16 of the project. Petitioner could have made known its members' belief that the documents were relevant 17 to the proposed decision to approve the lighting contract and offered the documents into the record prior 18 to project approval, but did not do so. Those documents therefore, are not part of the administrative 19 record and they constitute inadmissible extra-record evidence. (Porterville, supra, 157 Cal.App.4th at 20 pp. 894-895; WSPA, supra, 9 Cal.4th at p. 574.) 21 In anticipation of Petitioner's arguments in opposition to this motion, the City notes that Public 22 Resources Code, section 21167.6, subdivision (e) does not support an expansive view of the record that 23 would justify inclusion of the Augment Documents. That provision, which lists the types of documents 24 that must be included in the record, clearly refers to documents pertaining to the particular project under revievv, not every single project that had been or will be under consideration by the agency. Nor 26 does it contemplate the inclusion of every document in an agency's files. Moreover, even if a document 27 fits within one of the broad categories listed in subdivision (e), it is still subject to WSPA' prohibition on 12
1 extra-record evidence if those documents were not before the agency when it made its challenged 2 decision. There is simply no authority that supp01is adding or relying on pages 584 to 675 of the 3 augmented record for this case. The Court must therefore strike these pages from the record and 4 disregard all arguments in Petitioner's briefs that rely on them. 5 6 D. The Augment Documents consisting of documents submitted after the project approval are irrelevant and inadmissible extra-record evidence. 7 The documents Petitioner offered as Exhibits B and C of the Augment Documents also should 8 not be included in the record or relied upon by Petitioner in its briefs (OB, pp. 1, 3, 9-13, 17, 19-21, 23-9 26) or this Court. The documents were submitted long after the City approved the project-many not 10 even created until after the project was implemented. Exhibit B begins with 41 pages of emails sent in 11 late January and February of 2012, after project approval and implementation. (AR 676-717.) The next 12 138 pages consist of a National Historic Landmark District Area survey adopted in February 2012 that 13 does not once mention the nature oflighting or light fixtures in historic Monterey. (AR 718-856.) 14 Exhibit C consists of post-project-implementation emails and complaints (AR 857-921) as well as 15 random, inelevant studies and newspaper articles Petitioner found on the internet. (AR 922-1005.) 16 17 Administrative records close upon an agency's final decision. In this case, that final decision was the City's project approval on November 1, 2011. The exemption determination was proposed by the 18 City staff before the project was approved, as required. (San Lorenzo, supra, 139 Cal.App.4th at p. 1385 19 [explaining that agency must determine whether a Project is exempt from CEQA before it approves the 20 project].) The City's later filing of a Notice of Exemption was not the final decision; it was simply 21 22 23 24 optional documentation of the earlier final decision on November 1, 2011. 6 The City was not required to file the Notice of Exemption in the first place, so it doing so could not have been determinative of the end-date of the administrative record. (Guidelines, 15062, subd. (a); San Lorenzo, supra, 139 6 1 In fact, NOEs must only be filed after project approval. (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 423.) NOEs are routinely included in administrative records even though 26 they post-date the project approvals simply because they document the stmi of the statute oflimitations period. (Stockton Citizens for Sensible Planning, supra, 48 Cal.4th at p. 506; see also Pub. Resources 27 Code, 21167.6, subd. (e)(5) [record includes all notices issued by the agency to comply with CEQA or any other law governing the processing and approval of the project at issue].) 13 MOTION TO STRJKE EXTRA-RECORD DOCUMENTS
1 Cal.App.4th at p. 13 85 ["A notice of exemption has no significance other than to trigger the running of 2 the limitations period."].) Therefore, the record ends on November 1, 2011-the day that the project was 3 approved. Any documents submitted to the City after that date are irrelevant. (Friends of the Old Trees, 4 supra, 52 Cal.App.4th at p. 1391 [purpose ofrestricting review to the administrative record is to ensure 5 that the courts do not "engage in independent factfinding rather than engaging in a review of the 6 agency's discretionary decision"].) 7 Again, "the only evidence that is relevant to the question of whether there was substantial 8 evidence to support a quasi-legislative administrative decision under Public Resources Code section 9 21168.5 is that which was before the agency when it made its challenged decision." (WSPA, supra, 9 10 Cal.4th at p. 573, fn. 4.) Here, the City approved the project on November 1, 2011, after dete1mining 11 that the Project was exempt from CEQA. (AR 2, 7, 24, 39.) Documents that did not yet exist or were not 12 submitted to the City by that date could not have been before the City when it made its decision. 13 Furthe1more, an agency's compliance with CEQA for a particular project ends when it approves the 14 project. (El Morro, supra, 122 Cal.App.4th at p. 1361 ["It is axiomatic that once an agency has given its 15 requisite approval to a project, CEQA's role in that project is completed."].) Therefore, the documents in 16 Exhibits Band C of the Augment Documents (AR 676-1005) are inadmissible. 17 An argument Petitioner may make that the record should include complaints submitted to the 18 City after the project was implemented is particularly dubious. CEQA does not permit decision-makers 19 to wait until after a project is implemented to see if it will have any significant impacts and then decide 20 what type of environmental document is appropriate, if any. Likewise, project challengers cannot wait 21 until after a project is approved and implemented, complain about the project, and then rely on their own 22 complaints as substantial evidence to challenge the validity of the project's earlier approval under 23 CEQA. 24 Project opponents also cannot satisfy their evidentiary burdens under CEQA by simply pointing to general studies without showing specifically how those studies apply to the project. (Save Our Plastic 26 Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 175.) Petitioner's "studies" and 27 opinion pieces (AR 718-856, 922-1005) have less scientific rigor than those rejected in Save Our Plastic 14
1 Bag. Even if these documents are technically relevant, they cannot overcome the WSPA bar. (WSPA, 2 supra, 9 Cal.4th at pp. 576-577 [court cannot admit additional evidence simply to show the agency did 3 not consider all relevant factors in making its decision; such exception would swallow the rule].) 4 Simply put, the documents at AR 676-1005 do not belong the City's record of proceedings for 5 the project being challenged by Petitioner because they did not exist at the time the City approved the 6 project or were never submitted to the City before November 1, 2011. Thus, this Court should strike 7 these Augment Documents from the record as well as the arguments in Petitioner's briefs that rely on 8 them. (OB, pp. 1, 3, 9-13, 17, 19-21, 23-26.) 9 v. CONCLUSION 10 Petitioner's reliance on the Augment Documents for the majority of their arguments in 11 opposition to the project contravenes the plain rule established by the state Supreme Court in WSP A and 12 its progeny. The Augment Documents were not before the City at the time it approved the project. Many 13 of the documents did not even exist at that point. The Augment Documents are therefore inelevant and 14 should be stricken from the record. 15 16 Dated: December ~ ~, 2015 17 18 19 20 21 Respectfully, REMY MOOSE MANLEY, LLP By:_~_M_~,_~-~-- SABRINA V. TELLER Attorneys for Respondent CITY OF MONTEREY 22 23 24 26 27 15
Turn Down the Lights v. City of Monterey 1 County of Monterey, Case No. M116731 2 PROOF OF SERVICE 3 I, Michele L. Nickell, am a citizen of the United States, employed in the City and County of 4 Sacramento. My business address is 455 Capitol Mall, Suite 210, Sacramento, California 95814. My email address is mnickell@rmmenvirolaw.com. I am over the age of 18 years and not a party to the 5 above-entitled action. 6 I am familiar with Remy Moose Manley, LLP's practice whereby the mail is sealed, given the 7 appropriate postage and placed in a designated mail collection area. Each day's mail is collected and deposited in a U.S. mailbox after the close of each day's business. 8 On December 23, 2015, at 3:00 p.m. I served the following: 9 10 11 12 13 14 D D On the parties in this action by causing a true copy thereof to be placed in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail addressed as follows; or On the parties in this action by causing a true copy thereof to be delivered via Federal Express to the following person(s) or their representative at the address( es) listed below; or 15 16 17 18 D On the parties in this action by causing a true copy thereof to be delivered by facsimile machine number (916) 443-9017 to the following person(s) or their representative at the address( es) and facsimile number(s) listed below; or 0 On the parties in this action by causing a true copy thereof to be electronically delivered via the internet to the following person(s) or representative at the address( es) listed below: 19 I declare under penalty of pe1jury that the foregoing is true and correct and that this Proof of ~~ Senice was executed tills 23rd day ofdecem;;;;:;r;;::ll& 22 Michele L. Nickell 23 24 26 27 PROOF OF SERVICE
Turn Down the Lights v. City of Monterey 1 County of Monterey, Case No. Ml 16731 2 3 4 5 6 7 8 9 10 11 12 Michael W. Stamp Molly E. Erickson STAMP I ERICKSON 4 79 Pacific Street, Suite One Monterey, California 93940 Telephone: (831) 373-1214 Facsimile: (831) 373-0242 E-mail: erickson@stamplaw.us Susan Brandt-Hawley Brandt-Hawley Law Group P.O. Box 1659 Glen Ellen, California 95442 Telephone: (707) 938-3900 Facsimile: (707) 938-3200 E-mail: susanbh@preservationlawyers.org SERVICE LIST Attorney for Petitioner TURN DOWN THE LIGHTS VIA EMAIL Attorney for Petitioner TURN DOWN THE LIGHTS VIA EMAIL 13 14 15 16 17 18 19 20 21 22 23 24 26 27 Rachel Mansfield-Howlett Provencher and Flatt LLP 823 Sonoma Ave. Santa Rosa, CA 95404 Telephone: (707) 4-2380 Facsimile: (707) 4-2387 E-mail: rhowlettlaw@gmail.com Attorney for Petitioner TURN DOWN THE LIGHTS VIA EMAIL PROOF OF SERVICE