What Land Use Instances Taught (or Reminded) Us Concerning the Fundamentals of Litigation in 2020 | Coblentz Patch Duffy & Bass
Last year brought a lot of things to the legal profession that we never expected, such as lawsuits conducted by Zoom and virtual happy hours, to name a few. But it also brought with it a handful of new CEQA and land use decisions that, like many events in 2020, reminded legal practitioners to focus on the basics. In litigation, this includes keeping documents, evidence and legal remedies. These details, while often overlooked in written procedures, can establish or break your case.
Storage of documents
Parties to civil litigation who know or reasonably believe that litigation is looming are required to retain relevant documents or risk sanctions (including, in extreme cases, termination of sanctions). Golden Door Properties, LLC v San Diego County Superior Court (2020) 53 Cal.App.5th 733 reminded us that this rule applies equally to any agency conducting a CEQA review.
In 2014, San Diego County began reviewing approximately 600 acres of residential and business development adjacent to the upscale Golden Door Spa and Resort. Almost immediately, Golden Door raised concerns about the environmental impact of the project and advised the county that it would oppose the development. However, the county has not taken any special precautions to retain documents or suspend the automatic deletion of emails.
Four years later, after the project’s draft environmental impact report was published, Golden Door sent the county a request for the Public Records Act and looked for documents related to the project. In response, the county produced 42 emails. When asked about the limited production, the district stated that emails are automatically deleted after 60 days.
The fourth district appeals court ruled that the county’s automatic erasure policy is illegal as it destroys official records that the county is required to keep. In particular, CEQA stipulates that a wide range of documents must be “part” of the protocol, including all correspondence and written materials relevant to the authority’s compliance with the CEQA or its decision on the project. (Pub. Res. Code § 21167.6.) By automatically deleting e-mails, the county made it impossible to create the required data set.
Without proper record, the county may not be able to demonstrate compliance with the CEQA, adequately inform the public about the project, or demonstrate to the Court of Justice that its decisions are supported by material evidence. In other words, as with any civil lawsuit, the county risked penalties in future litigation for poor document retention policies. However, this risk can be avoided. Public authorities (as well as developers who work with them) can take steps to ensure that all documents relevant to the approval of a project are retained and available in the event of future litigation.
Just as civil litigation attorneys know that documents must be kept, we also know that at the trial we must provide the evidence that supports our case. This means providing reliable witnesses who can bear testimony that conforms to the legal standards we are trying to meet. And in Tiburon / Belvedere Residents United in Support of Trails Against Martha Company (2020) 56 Cal.App.5th 461, we learned that it doesn’t matter how many witnesses you create if you don’t check these boxes.
The Tiburon / Belvedere Residents United in Support of the Trails (TRUST) petitioners applied for an undisclosed title for private property north of San Francisco based on an alleged implicit dedication that occurred before 1972 when a change in the law essentially abolished implicit dedications. In order to prove his case, TRUST had to demonstrate that the property in question had been openly and continuously used by the public for a period of more than five years prior to 1972, with full knowledge of the owner, without asking for or obtaining permission, and without objection.
TRUST produced 28 witnesses who testified that they used the property for recreation from 1967 to 1972 without permission from the owner and without objection. Despite the overwhelming number of TRUST witnesses, there were two serious flaws in the evidence presented.
First, and perhaps as an inevitable consequence of the passage of time, almost half of the Witnesses in 1972 were minors. As the court found, children are “born intruders” who cannot establish a reasonable belief by the public in their right to use the property. “
Second, all of TRUST’s Witnesses lived in the area at the time. In other words, their testimony did not show widespread use by the general public, but rather limited local use that the owner may have consented to as neighborhood accommodation or which he or she may go unnoticed due to the low visibility associated with local has widespread use.
In contrast, the owner of the property, who carefully kept photos with fences, gates and no unauthorized signs on the property during the relevant period, provided testimonials showing attempts to prevent public use. This, together with the lack of evidence of TRUST, secured the verdict in favor of the owner.
The lesson here? Even if – or perhaps especially if – your case is based on events that have occurred well in the past, the quality of your evidence matters. As you prepare for the trial, make sure you have the witnesses and testimony to prove every element of your claim.
While we need to focus on proving our case, we can’t overlook the most important part either – what we get if we win and how to minimize our losses if we don’t win. In CEQA cases, however, it is common for petitioners to simply request the release of project permits without any analysis or argument on how to make this relief. Last year, Sierra Club scored 57 Cal against County of Fresno (2020). App. 5. 979, reminded us that we should be just as careful with appeals in written procedures as we should with damages, declaratory relief, or other civil remedies.
The Sierra Club is the latest installment in the Friant Ranch saga, which first began in 2007 when Fresno County released a draft Environmental Impact Assessment (EIR) for a planned community of 942 acres. Litigation erupted after the project was approved in 2011 and the case has since prevailed in court. In 2018, the California Supreme Court concluded that the EIR’s discussion of the project’s air pollution impact was insufficient and referred the case back for further trial. (See Sierra Club v County of Fresno (2018) 6 Cal.5th 502.) While in custody, the court issued the requested notice and ordered the county to revoke project permits for the Friant Ranch and prepare a revised EIR.
The developer argued that this means was inadequate and that the court should have ordered a partial decertification of the EIR instead of a complete revocation of the project permits. The Fifth Circuit Court of Appeal disagreed and ruled that the relevant legal language does not allow partial certification. CEQA requires that lead agencies “certify” the completion of an EIR and its compliance with CEQA in its entirety. (See Pub. Res. Code § 21100; 14 Cal. Code Regs. § 15090.) There is no half measure.
One provision, however, opens the door to partial decertification. Section 21168.9 of the Public Resources Code provides that a court may issue a mandate notice that “wholly or partially” overturns a “determination, determination or decision” by an authority. While this language could aid in the partial decertification of an EIR, the appeals court concluded that it is incorrect in the Sierra Club because the EIR’s air quality analysis is inseparable from the other aspects of project approvals.
Aside from the legal language and the question of separability, it is evident that the court decertified the EIR in its entirety, as this was the appeal sought by the petitioners. At no time prior to the award of the mandate have the county or developer argued that this relief was inappropriate or made an argument in favor of partial and incomplete decertification. If they had looked into the remedial action before it was too late and put forward an argument in favor of partial decertification, they might have been able to minimize the impact of that loss.
2021 and beyond
This year the legal profession is likely to bring even more surprises. However, keeping in mind the basics like document retention, evidence, and remedial action can often make the biggest difference in disputes, no matter how large or complex they are.