Dealing with Carlsbad is interesting. You twice ask in writing for an item to be put on the City Council public agenda. Instead, the Council meets in closed session to discuss the issue without putting the item on the open session agenda and without telling you. Should the public care? More in a week or two.
Today, oddly enough, we continue last week’s Blog 31 discussion of what the public can do when the government ignores you.
The “Administrative Record”
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Say you want to challenge a government planning, zoning, environmental, or other decision. Go to court. Ask for a “writ of mandate.” You are asking the court to order the government to reconsider the decision being challenged.
To decide the case, the court looks at the “administrative record.” This record is simply all the information that was put before the Board of Supervisors [BOS] or City Council [or City Planning Commission] when it acted.
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The record includes the staff reports and other info sent to the BOS or City and the info presented by the public. Included are statements made at the public meeting when the BOS or Council acts. But don’t rely on the government to tape your statement. Mail in and hand out a written statement at the meeting.
Why the term “administrative” record? Simply because all entities in California other than the courts and legislature are entities that “administer” the law.
And, remember. The record closes when the government acts. Usually, the court does not accept new evidence. From you or the government.
What You Need to Win: The Burden of Proof: The Facts
Take 3 sheets of typing paper. Dip each in colored water. Hold Sheet 1 in the corner while you dip. Less than 1% of Sheet 1 remains white. In a criminal trial, a prosecutor must prove a case “beyond a reasonable doubt.” Sheet 1 roughly depicts the prosecutor’s burden.
Now dip Sheet 2. A smidge more than half way. Sheet 2 depicts the plaintiff’s burden in a civil trial. Often, a civil trial plaintiff seeks money damages. Lawyers refer to this proof test as “a preponderance of the evidence.”
Lastly, dip Sheet 3. How much? Dip Sheet 3 so that only 20% of it is colored.
To defeat a citizen writ of mandate suit based on a factual dispute, the County or City only needs to show “substantial” evidence supports its decision. What is “substantial” evidence? The test is quite subjective. Courts don’t agree. Sheet 3, only 20% colored, might well represent substantial evidence.
Look at the “substantial” evidence test another way. Assume you put substantial evidence in the record showing that the BOS or City decision is wrong. What happens? The court now has substantial evidence from you and the government.
The government wins [except as noted below]. The court does not ask whose evidence is better. The court simply asks if the government evidence is substantial. But, as noted in Blog 31, the substantial evidence test sometimes favors the public.
The government must prepare full Environmental Impact Reports [EIRs] rather than short negative declarations if substantial evidence in the record supports a fair argument that the proposed project may produce significant environmental effects. [See CEQA, Public Resources Code, §§21080, subd. (d) 21082.2, subd (d) and CEQA guidelines, §15064, subd. (f)(1)]. Your goal: put substantial evidence in the record.
What You Need to Win: The Burden of Proof: The Law
The discussion above dealt with disputed facts. You can more easily overturn a government decision if the government “failed to proceed as required by law.” Just a few legal challenges to a government CEQA case might include:
Defective Public Hearing. If the government failed to hold a proper public hearing complying with the California Brown Act, the government loses.
Approving a Project Before Full Environmental Review. Under CEQA government environmental review is final only after the review document has been circulated, comments have been received, and the government has responded. Governmental action before an environmental document is complete is fatal.
Defective Project Scopes & Alternatives. A CEQA analysis is valid only if it looks at the correct project and alternatives. Look for inconsistent government actions. For instance, when the government touts the economic benefits of a project, the government often uses optimistic forecasts. But when the same government analyzes environmental impacts, the government uses pessimistic figures.
Failure to Consider Cumulative Impacts. Few California environmental documents properly consider the total impacts of the project studied including the impacts of recent and future projects. When commenting, note all the recent and near term projects that the government has omitted from the analysis.
