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Cost RecoveryOn, September 12, 2015, the Fifth District Court of Appeal issued its opinion in Citizens for Ceres v. City of Ceres (2016) _Cal.App.5th_.  The opinion authorized real-parties-in-interest to recover costs of record preparation, as long as the record was prepared in a manner prescribed by Public Resources Code section 21167.6. The petitioners in this action challenged the EIR for a new shopping center anchored by a Wal-Mart on a variety of grounds, including that the project did not adequately mitigate for urban decay impacts and that the EIR failed to set forth an adequate long-term plan for solid waste disposal. The trial court upheld the EIR on all grounds but rejected real-party-in-interest Wal-Mart’s motion to recover costs associated with preparing the record, based on Public Resources Code section 21167.6 and the principles elucidated in Hayward Area Planning Assn. v. City of Hayward (2005) 128 Cal.App.4th 176.

In the unpublished portion of the opinion, the Fifth District affirmed the trial court’s decision on the merits, rejecting each of the petitioner’s claims in turn. However, in the published portion of the opinion, the Court reversed the trial court on the issue of Wal-Mart’s request for costs, disagreeing with the Hayward court to the extent that that case proscribed a real-party-in-interest’s recovery of record costs under any circumstances.

Section 21167.6 provides only three options for preparation of the record:

  1. The agency can prepare it;
  2. The petitioner can prepare it; or
  3. The agency and petitioner can agree to some other procedure.

In Hayward, the agency did not prepare the record itself; rather, without consulting with the petitioner, the agency requested that counsel for the developer prepare the record. The court found that the developer’s costs were not recoverable because the record had not been prepared in a manner permissible under the statute. The Hayward court averred that requiring the agency to appear in court to recover its own costs would incentivize public agencies to minimize costs associated with the record. The Ceres court rejected this argument, stating that it “might or might not be good public policy, but we do not see how section 21167.6 implies it.”

The Fifth District distinguished Hayward on the basis that here, the agency did prepare the record, but was subsequently reimbursed by Wal-Mart. The Court found that because the record was prepared in a manner allowed under the statute, there was no limitation on who could recover the costs of preparation.