Yolo Land & Water Defense v. County of Yolo
(Case No. C099086)
In the recently published Yolo Land & Water Defense v. County of Yolo decision, the California Court of Appeal, Third District, affirmed the right of the lead agency under CEQA, as the prevailing party, to recover reasonable costs associated with administrative record preparation even though petitioners had elected to prepare the record.
In the case, the applicant sought the County’s approval of the Teichert Shifler Mining and Reclamation project on a 320-acre parcel. The County certified the final environmental impact report (EIR) for the project and approved a mining permit, which actions were challenged by Yolo Land & Water Defense and Sierra Club (petitioners). The lower court denied the writ of mandate petition and petitioners’ motion to tax the County’s record preparation costs.
In the unpublished portion of the opinion, the Court rejected petitioners’ substantive challenges to the project EIR, thereby affirming the EIR’s use of an existing conditions baseline, the EIR’s analysis of the potential for an increase in methylmercury in the reclaimed lake, and the County’s conclusion that the project’s mitigation would reclaim mined land to a state that is equivalent in quality and capacity to existing prime farmland. As the Court’s evaluation of these topics is unpublished, they will not be discussed further here.
In the published part of the decision, the Court discussed petitioners’ challenge to the County’s record preparation costs. The Court first examined Public Resources Code section 21167.6, which authorizes a petitioner to elect to prepare the administrative record instead of asking the public agency to prepare it. In this instance, petitioners elected to prepare the administrative record but asked the County – via a Public Records Act request – to produce the documents. The County, in preparing and certifying the record (29,745 pages in length), incurred $3,813.45. The Court then concluded that section 21167.6 does not provide that a public agency prevailing in a CEQA action may not recover reasonable costs associated with the preparation of the administrative record that were actually incurred.
That conclusion was buttressed by Code of Civil Procedure section 1032, which provides that – in general – a prevailing party is entitled to cost recovery, and Code of Civil Procedure section 1094.5, which provides that if an expense associated with preparation of the record has been borne by the prevailing party, the expense shall be recoverable as costs. The fact that the County produced the records in response to a Public Records Act request did not convince the Court to disallow recovery of costs actually incurred in preparation of the administrative record. Though unpublished, the Court also determined that petitioners failed to show that the County’s cost amount was unsupported or unreasonable.
The Yolo Land & Water Defense decision is a reminder, and a warning, to all CEQA petitioners that their CEQA lawsuits may have an additional cost to them – the cost of the lead agency’s record preparation efforts when the CEQA challenge is denied. It is also a reminder to lead agencies to indeed seek recovery of those costs, which are often not inconsequential.
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