Judge Mitchell L. Beckloff, Case 22STCP01932 2023-03-01 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP01932, Date: 2023-03-01 Tentative Ruling

Petitioner, Leona Valley Town Council, moves to strike the supplement to the administrative record filed by Respondent, the City of Palmdale, after Petitioner filed its opening brief. Petitioner also requests an order entering judgment on its petition against both the City and Real Party in Interest, RdR Development Holdings, LLC. The City and Real Party oppose the motion.

The City now represents—without admitting any issues with the original certified administrative record—it “performed a fresh completeness review and prepared a corrected version of the record that includes inadvertently omitted documents, including the spreadsheet email attachments, meeting minutes, and resolutions.” (Opposition 5:12-15.) The City also advises the corrected version of the administrative record is organized as required by the California Rules of Court, Rule 3.2205, subdivision (a), “is text searchable, and does not alter any of the prior bates page numbering of the documents in the record the City originally certified.” (Opposition 5:16-17.) Finally, the City reports it “is prepared to certify this corrected record and provide it to the parties and the Court so that the Court may set a new writ hearing date and give Petitioner the opportunity to file a new or amended opening brief.” (Opposition 5:20-22.)

Based on the City’s representations, the court is inclined to advise the City to certify the corrected record and then provide the parties with a new trial date. The court would allow Petitioner to file a new opening brief. Alternatively, Petitioner could file a single page supplement to its opening brief given the revised certified record would seemingly eliminate a single-page argument Petitioner made in its opening brief. Alternatively, the court will set a motion to augment on statutory time—on or about March 23, 2023—at this hearing if requested.

On February 27, 1992, the City certified environmental impact report (EIR) 90-4 and approved the Ritter Ranch Specific Plan for a 10,625-acre development consisting of 7,200 residences, 7,628-acres of open space and the necessary public facilities, recreational amenities, schools, and commercial uses; the approvals included a development agreement. (Pet., ¶ 12.) EIR 90-4 determined the potential environmental impacts of the project were less than significant. (Pet., ¶ 13.) In December 1995, the City approved six vesting tentative maps; all six vesting maps expired in 2017. (Pet., ¶ 14.) In June 2012, the related development agreement expired. (Pet., ¶ 15.)

In 2021, Real Party sought the City’s approval to build Phase 1A of the project, which “would allow for the development of 553 single family detached homes on approximately 115 acres within the Ritter Ranch Specific Plan area.” (Pet., ¶ 17.)

On February 10, 2022, the City’s planning commission approved Phase 1A of the project—after determining further environmental analysis was not required. (Pet., ¶ 18.) Petitioner appealed the Phase 1A project approval to the city council. (Pet., ¶ 19.) On April 20, 2022, the city council held a public hearing and denied the appeal. (Pet., ¶ 20.)

“[there] is no evidence to support the City's erroneous conclusion that: (1) the Project will not cause any substantial changes in any portion of the Project described in EIR 90-4 because the project is not modifying the scope or intent of the Specific Plan; (2) no substantial changes have occurred to baseline conditions because no significant development adjacent to the Project area which impacts the infrastructure, services, or development potential within the City’s boundaries has occurred; and, (3) no new information of substantial importance had been provided with respect to the Specific Plan. The City Council failed to make full consideration of EIR 90-4, and recognize the adverse environmental assessment of that EIR and any overriding considerations. The City Council failed to make full consideration of EIR 90-4, and recognize the adverse environmental assessment of that EIR and any overriding considerations.” (Pet., ¶ 30.)

Petitioner moves to strike the City’s supplement to the administrative record served on January 20, 2023, 14 days after Petitioner filed its opening brief and just over five weeks before trial on the petition.

The Public Resources Code requires the City to prepare and certify the record of proceedings. (Pub. Resources Code, § 21167.6, subd. (b)(1).) Public Resources Code section 21167.6, subdivision (e) provides a non-exclusive list of items that comprise the administrative record. (See also Cal. Rules of Court, Rule 3.2205.)

Generally, public agencies “shall prepare and certify the record of proceedings not later than 60 days from the date that the request [to prepare the record] was served upon the public agency.” (Pub. Resources Code, § 21167.6, subd. (b)(1).) “Upon certification, the public agency shall lodge a copy of the record of proceedings with the court and shall serve on the parties notice that the record of proceedings has been certified and lodged with the court.” (Ibid.) These time limits “may be extended only upon the stipulation of all parties.” (Id., subd. (c).)

“If the public agency fails to prepare and certify the record within the time limit established in paragraph (1) of subdivision (b), or any continuances of that time limit, the plaintiff or petitioner may move for sanctions, and the court may, upon that motion, grant appropriate sanctions.” (Id., subd. (d).)

Petitioner argues the City certified a legally inadequate administrative record in this matter on November 7, 2022. According to Petitioner, the original administrative record contains only unsigned resolutions and unapproved resolutions related to approval of the Phase 1A project. (Raskin Decl., ¶ 11; see also AR 2480-2488, AR 2515.)

As noted, on January 6, 2023, Petitioner filed its Opening Brief. Petitioner argued, in part, judgment should be entered in its favor because the administrative record “fails to provide official, approved findings that support the February 10 and April 20, 2022 actions . . . .” (Opening Brief 10:7-20.)

Two weeks later, on January 20, 2023, the City served a document entitled: “Notice of Certification of Supplement to the Administrative Record” on Petitioner. (Raskin Dec., ¶ 15.) The supplement included signed copies of the following resolutions: City Council Resolutions No. 2022-031 (Approved April 20, 2022); Planning Commission Resolution No. PC-2022-005 (Approved February 10, 2022); Planning Commission Resolution No. PC-2022-006 (Approved February 10, 2022); Planning Commission Resolution No. PC-2022-007 (Approved February 10, 2022); Planning Commission Resolution No. PC-2022- 008 (Approved February 10, 2022); Planning Commission Resolution No. PC-2022-009 (Approved February 10, 2022); and Planning Commission Resolution No. PC-2022-010 (Approved February 10, 2022). (Riskin Decl., Ex. 14, Ex. 18 [Amended Index to Administrative Record, Items 32-41].) Thus, the City attempted to cure the deficiencies in the administrative record identified by Petitioner in its Opening Brief.

Petitioner seeks to strike the supplement to the administrative record. Petitioner also seeks judgment in its favor based on the City’s alleged preparation of a legally inadequate record. Petitioner also reports the City failed to include certain attachments to emails and created a difficult to follow indexing system. Petitioner explains the City used a “polluted process” to create the administrative record such that it is entitled to judgment. (Memo 14:21.)

As a preliminary matter, the court makes no assessment concerning the adequacy of the administrative record—with or without the supplement—for purposes of this motion. Instead, the court need only evaluate whether the City’s attempt to supplement the administrative record to address possible deficiencies raised by Petitioner in its Opening Brief is consistent with applicable laws, regulations and court rules.

The City and Real Party respond (in addition to that identified earlier about the City’s “fresh completeness review”) certification of a supplement to the administrative record here was not improper. The City and Real Party, however, cite no legal authority to support their position. While the City and Real Party argue nothing precluded the City from certifying a supplement to the administrative record, doing so after Petitioner has filed its Opening Brief relying on the certified administrative record is—at a minimum—highly problematic and prejudicial to Petitioner.[1]

While a motion to augment the administrative record may only be necessary where there is a dispute about the contents of the administrative record (see Los Angeles County Court Rules, Rule 3.232, subdivision (f)), under the circumstances here where Petitioner’s Opening Brief for trial had already been filed, the City should have sought leave or authority from the court before certifying a supplement to the administrative record. The City’s actions here shifted all obligation to Petitioner to seek some remedy from the court where Petitioner relied upon the then certified administrative record in its Opening Brief, and part of that argument noted omissions of signed resolutions in the certified administrative record.

Petitioner contends the prejudice it has suffered requires an appropriate sanction—judgment in its favor against the City and Real Party.

In Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, a petitioner challenged the sufficiency of an EIR, the approval of the project in the face of feasible alternatives, the failure of the final EIR to respond to public comments, and the lack of substantial evidence to support the agency’s required findings for project approval. (Id. at 368.) The Court of Appeal found the administrative record so deficient it set aside the agency’s project approval. The Court of Appeal noted the administrative record presented in “14 binder-sized volumes . . . [and] read[] as if its preparers randomly pulled out documents and threw them into binders, failing to organize them either chronologically or by subject matter. Key findings required under [the law] [we]re impossible to find—let alone sufficient to enable [the appellate court] to determine whether they are supported by substantial evidence.” (Id. at 365.) The Court of Appeal found the deficient record warranted setting aside the project approvals. (Id. at 373.)

Petitioner contends the court should enter judgment in its favor here as a sanction under Public Resources Code section 21167.6, subdivision (d). The statute provides: “[i]f the public agency fails to prepare and certify the record within the time limit established in paragraph (1) of subdivision (b) [of Public Resources Code section 21167.6], or any continuances of that time limit, the plaintiff or petitioner may move for sanctions, and the court may, upon that motion, grant appropriate sanctions.” (Pub. Resources Code § 21167.6, subd. (d).)

Petitioner’s request is an unreasonable sanction. An appropriate sanction is merely striking the supplement—such an order reflects the facts as they were when Petitioner filed its Opening Brief. Striking the supplement effectively eliminates any injury to Petitioner and allows the court at the time of trial to determine whether, as Petitioner claims, the administrative record is so inadequate that it is entitled to judgment.[2]

Finally, Petitioner’s argument the City may attempt to recover costs related to paralegal or staff time for preparing multiple versions of the administrative record is more appropriately raised when, and if, relevant.

Based on the foregoing, the motion is granted in part—the court strikes the supplement to the administrative record and denies Petitioner’s request to enter judgment.

To be clear, this order is without prejudice to the City and Real Party seeking leave to move the court to allow consideration of the supplement to the administrative record or the corrected administrative record in these proceedings.

If the court cannot reach consensus about how to proceed, if requested, the court intends to set a motion to augment on statutory time. As part of considering the motion to augment, the court would consider how best to accommodate Petitioner given that it already filed its Opening Brief.

[1] The court notes Petitioner’s Opening Brief asserts the final resolutions and “will serve” letters related to water are not in the administrative record. Petitioner otherwise makes no complaint about the administrative record in its Opening Brief. That is, Petitioner has not argued the record is so deficient it is entitled to judgment.

[2] While the court finds striking the supplement to the administrative record is an appropriate sanction here, the court is not prejudging any future motion to augment the administrative record the City may bring.