In an unpublished decision in Mt. Shasta Tomorrow v. County of Siskiyou 2014 Cal. App. Unpub. LEXIS 3445, the Third Appellate District upheld a trial court’s decision affirming Siskiyou County’s authority to require a deposit for the estimated cost of certifying the administrative record and denying a waiver request by the petitioner for the costs of the certification.

In the case, Mt. Shasta Tomorrow (MST) challenged Siskiyou County’s (the County) adoption of a zoning ordinance increasing various a CEQA petitioner to provide a deposit for the County’s estimated costs of preparing and certifying the administrative record. MST elected to prepare the administrative record and submit it to the County for certification pursuant to Public Resources Code, section 21167.6. While MST submitted the administrative record to the county for certification, MST did not pay the certification costs and ultimately asked for a waiver for the costs.

MST first argued that it was not required to pay any of the costs related to the administrative record because payment of a deposit for certifying the record conflicted with the CEQA rule awarding costs to the party that prevails at trial. However, the court noted that MST was confusing the issues between the award of costs to the prevailing party after the trial and the costs required to certify the record before litigation. CEQA explicitly provides that when the petitioner elects to prepare the record itself, as MST did in this case, the record is subject to certification and review by the agency and the petitioner is responsible for the costs of that review. (§ 21167.6, subd. (b).) The County’s costs to certify the record are incurred before trial, which is necessary to ensure an accurate record for a proper determination on the merits. In contrast, the costs of the prevailing party are determined after the trial, and are thus an entirely separate issue from the pretrial costs. As a result, it was proper for the County to require payment of the probable costs of certification and preparation of the record.

MST also contended that the $1,955.54 deposit required by the County was unreasonable. The County provided declarations detailing the time required to certify the record, and MST only referred to the costs of certification in other cases to refute the County’s estimate. The court reviewed the trial court’s decision under an abuse of discretion standard and found that the trial court did not abuse its discretion when it implicitly found that the costs were reasonable. The fact that the estimated costs of certification might end up being higher than the ultimate costs was not enough to find that the trial court abused its discretion. MST even stipulated to pay the deposit at one point in the proceedings and only later argued the costs were unreasonable. Therefore, the court held that the trial court did not abuse its discretion in finding that the costs to certify the record were reasonable.

MST also raised a policy argument that requiring payment of costs by the petitioner violated CEQA because it deterred public participation in the environmental review process. However, the court stated that the legislature rather than a court was the proper venue for such an argument. The legislature established that the challenger must pay to have the record prepared and certified and the court did not have the authority to hold otherwise.

Lastly, MST contended that the trial court erred in denying its request for a cost waiver. The court made two points in affirming the trial court’s denial. First, although MST repeatedly claimed it had no resources to pay the costs, it never provided any evidence to support the claim. Additionally, MST repeatedly violated court orders to pay the costs and even admitted that it was never going to be able to pay the costs. It was only after delaying for several months that MST requested the waiver. As a result, the court held that MST had no good faith intention of ever paying the costs and the trial court was justified in denying the waiver.

Many lead agencies have adopted ordinances requiring a petitioner to pay the lead agency’s costs to prepare the administrative record when the petitioner does not elect to prepare; far fewer ordinances expressly require a petitioner to pay a deposit for the lead agency to review and certify the administrative record after a petitioner elects to prepare the administrative record.  While the decision is unpublished it serves as a reminder that even where a petitioner elects to prepare the administrative record, the lead agency still bears the burden to review and certify the record.  Reviewing and certifying the administrative record is a time consuming task and nothing in CEQA prohibits a lead agency from developing an ordinance requiring a CEQA petitioner to pay a deposit to cover those costs.