A property owner that lost a California Environmental Quality Act suit against the City of San Rafael has been told to pay the city for costs incurred recovering emails related to the property and a proposed development project.

Although the developer's attorney characterized the email inquiry as a routine Public Records Act request, the First District Court of Appeal clearly thought it was an unnecessary fishing expedition for which the developer should pay.

The First District upheld the trial court's award of the expense, even though it was the property owner who prepared the administrative record. Typically, only the side that prepares the administrative record may have its costs covered. But the court found that the property owner's email demands justified the award of costs.

Furthermore, the court rejected the landowner's contentions that the city violated CEQA and the housing element law when the city removed the property from its sphere of influence. The decision concludes San Rafael's role in the acrimonious planning of the property, which is owned by St. Vincent's School for Boys, Catholic Charities. Marin County is now considering St. Vincent's development plans.

First, some background: St. Vincent's is a 150-year-old school and residential treatment center for troubled teenagers. It owns 835 acres between San Rafael and Novato. The mostly undeveloped property extends from Highway 101 on the west to San Pablo Bay on the east. The property is separated from the San Rafael city limits by the approximately 350-acre Silveira cattle ranch.

Since the early 1970s, Marin County has emphasized development in cities along the Highway 101 corridor in order to preserve much of the rest of the county. For years, city and county officials worked jointly on planning the roughly 1,200-acre St. Vincent's/Silveira site, assuming that San Rafael would eventually annex the territory. San Rafael's 1988 general plan designated the properties for 2,100 residential units. Environmentalists, however, have long fought development of the pastoral lands between the freeway and the bay.

When Marin County and San Rafael began updating their respective general plans nearly 10 years ago, they created a 16-member advisory task force to recommend use of the St. Vincent's/Silveira properties. In May 2000, the task force recommended 800 to 1,500 units, reduced to 500 units with the purchase of development rights. The city forwarded the recommendation to its general plan task force.

In early 2002 — while the city's general plan update was still in process — St. Vincent's and developer Shapell Industries submitted an application for 766 residential units and 120,000 square feet of commercial space. In January 2003, however, the City Council passed a resolution indicating its intent to remove the properties from the city's sphere of influence. Three months later, the City Council voted to deny the St. Vincent's and Shapell application for annexation and prezoning. The council found that, since the task force had presented its recommendation in 2000, planned road improvements had not been made, Highway 101 traffic had worsened, and public opposition to development of the site had grown. Plus, the council noted, the St. Vincent's property was not contiguous to the city.

In November 2004, the city adopted an updated general plan that excluded the St. Vincent's and Silveira properties from future annexation. In December of that year, St. Vincent's sued, arguing the city violated CEQA and state planning and zoning laws. In 2006, Marin County Superior Court Judge James Ritchie ruled for the city, and awarded the city $4,000 in filing and copying fees, plus $26,362 for the costs of retrieving emails. St. Vincent's appealed, but got nowhere with a three-judge panel of the First District, Division Three.

St. Vincent's did not dispute that the city had incurred costs while retrieving emails. Instead, St. Vincent's argued that the Code of Civil Procedure and the Public Records Act barred the award of costs. St. Vincent's argued that CEQA permits the petitioner (St. Vincent's in this case) to prepare the record of proceedings as a way of controlling the expense of lawsuits. Awarding the city its costs would frustrate CEQA's goal of controlling expenses, St. Vincent's argued.

But the court examined the specifics of the case and reached a different conclusion. In response to St. Vincent's initial request, the city turned over documents amounting to 58,000 pages. St. Vincent's found few emails included in the package, so it submitted a broad Public Records Act request for electronic communications stored on city computers. The city eventually turned over a collection of emails, but St. Vincent's was dissatisfied and further demanded documents. Again, the sides went back and forth with St. Vincent's continuing to complain about withheld emails. All the while, the case was moving forward in court.

"This record," wrote Alameda County Superior Court Judge Jeffrey Horner, sitting by assignment to the First District, "reflects a total disregard for cost-containment on St. Vincent's part, and a complete abandonment of its statutory duty to ‘strive to [prepare the record] at reasonable cost.' After three extensions of time, the city gave St. Vincent's 20 boxes of documents in April 2005. St. Vincent's then subjected the city to a costly and lengthy process of trawling through its entire computer system in response to an extremely broad and unbounded search for ‘all writings evidencing or reflecting communications … relating to or in connection with the St. Vincent's property or the Silveira property.' And St. Vincent's rationale for this? — not because it had identified any ‘gaps' in the voluminous planning documents contained in the 20 boxes, but because it was not satisfied with the number of emails contained in the 20 boxes."

Horner then wrote in italics: "It is telling that after all this, St. Vincent's does not mention one single email, obtained in response to its request, which provided information that bolstered any of its claims in this case. Indeed, we wonder what the point of all of it was, because, as noted, St. Vincent's filed its brief before the issue of the emails was ever resolved."

St. Vincent's attorney Stephen Kostka, of Bingham McCutchen, said that what the plaintiff did was not out of the ordinary. He said the court's ruling "indicates that perhaps it's a risk" for plaintiffs to assemble the record based on Public Records Act requests.

On the merits, St. Vincent's argued that the city improperly removed the St. Vincent's and Silveira properties from the city's sphere on influence in January 2003 without any CEQA review and as an unlawful reaction to a development application. But the court ruled that the January 2003 resolution did not trigger CEQA and that the general plan EIR provided satisfactory review.

As to the charge of an improper reaction to an application, the court noted that the city's decision merely maintained the status quo and did not preclude development.

St. Vincent's argued that the general plan EIR should have evaluated displacement of development as an impact because the plan would force development to distant locations. The court ruled, "[T]he city specifically addressed the issues of ‘displacement' or ‘leapfrog development' in its response to St. Vincent's comment on the EIR."

On the question of the housing element, St. Vincent's contended the city could not identify adequate sites to meet its fair-share obligation without the St. Vincent's and Silveira properties. The court disagreed, noting the city had identified more than enough sites to meet its fair share and had adopted policies to encourage housing development.

Potential development of the St. Vincent's and Silveira properties is now entirely within Marin County's hands, said San Rafael Community Development Director Bob Brown. The county's recently adopted comprehensive plan (see CP&DR Local Watch, January 2008) permits a total of 221 housing units clustered on 5% of the two properties, said Alex Hines, the county's community development director. The development could be split proportionately between the two properties, he said. The plan also permits other uses, such as an assisted living facility, so long as the uses do not generate more traffic than houses would, Hines said.

County supervisors rejected pleas from affordable housing advocates who said the properties could provide a site hundreds of affordable units in a county where the median price is more than $900,000. Instead, county officials emphasized the potential to restore wetlands on the St. Vincent's property. Plus, building a great deal of housing right at sea level makes little sense considering predictions of rising sea level and more severe storms, Hines said.

St. Vincent's has not filed an application, but it did endorse the comprehensive plan and the property owner's representatives have been talking with county officials, according to Hines

The Case:
St. Vincent's School for Boys, Catholic Charities CYO v. City of San Rafael, No. A116690, 2008 C.D.O.S. 3070, 2008 DJDAR 3705. Filed March 18, 2008. Certified for publication in full April 15, 2008 at 2008 DJDAR 5337.
The Lawyers:
For St. Vincent's: Stephen Kostka, Bingham McCutchen, (925) 937-8000.
For the city: Clark Guinan, city attorney's office, (415) 485-3080.