STEPHEN KOSTKA   &     MARIE COOPER

McCutchen, Doyle, Brown & Enersen, LLP

II. SETTLEMENT CONFERENCE

III. ADMINISTRATIVE RECORD

IV. RESPONSE TO PETITION

V. STATEMENT OF ISSUES

VI. HEARING & BRIEFING SCHEDULE

VII. BRIEFS

VIII. HEARING

IX. STATUS OF PROJECT PENDING LITIGATION

I. INTRODUCTION
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II. SETTLEMENT CONFERENCE
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Not less than 20 days after service of the petition, the respondent agency must give notice of a settlement conference. Pub. Res. Code § 21167.8(a). The settlement meeting is not judicially supervised. It must be held no later than 45 days after the respondent agency was served with the petition. Settlement meetings can prove useful when the petitioner has specific concerns - such as the need for additional mitigation measures. Failure of any party to participate in good faith in the settlement process without good cause is sanctionable by the court.

III. ADMINISTRATIVE RECORD
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CEQA cases are generally decided on the basis of the record of proceedings before the respondent agency. There is usually no discovery and evidence outside the record of proceedings is ordinarily not admissible. The petitioner may elect to prepare copies of the record itself, but the record remains subject to certification by the agency.

The administrative record must include:

(i) all project application materials;

(ii) all staff reports and related documents prepared by the City and written testimony or documents submitted by any person relevant to the City’s action on the project, compliance with CEQA, and any related findings adopted by the City;

(iii) any transcripts or minutes of proceedings at which the decision-making bodies at the City heard testimony or considered any environmental document on the project, and any transcripts or minutes of proceedings before any advisory body that were presented to the decision-making body prior to taking action on the environmental documents or the project;

(iv) any other written materials relevant to the City’s compliance with CEQA and its final decision on the merits of the project (such as the initial study, copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public or included in the City’s files, and all internal City communications, including staff notes and memoranda related to the project or compliance with CEQA).

IV. RESPONSE TO PETITION                                                                                                                       Return to Top

V. STATEMENT OF ISSUES                                                                                                                       Return to Top

Within 30 days from the date the record is certified, the petitioner must file and serve a statement of issues it intends to raise in the action. Within ten days after service of this statement, the respondent public agency and any real party in interest developer must respond with their own statement or statements of issues they intend to raise.

The statement of issues provides both sides with an opportunity to define the issues more clearly. It also provides an opportunity to eliminate any claims or defenses that were asserted in an abundance of caution, but which are determined not to be worth pursuing.

VI. HEARING & BRIEFING SCHEDULE
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CEQA requires petitioners to request a court hearing "within 90 days of filing the petition or otherwise be subject to dismissal on the court’s own motion or on the motion of any party interested therein." Upon the filing of the request, the court is required to establish a schedule for the filing of all briefs in the action. In the absence of good cause, that schedule must require briefing to be completed within 90 days of the date the request for hearing was filed. The hearing, "to the extent feasible," must be held within 30 days thereafter. The parties may stipulate to a different schedule with the approval of the court.

The statutes create two procedures for bringing a writ proceeding to hearing: a noticed motion made by either party, or an application for an alternative writ by the petitioner. Both procedures allow for short briefing schedules and a prompt hearing date. Both procedures presume, however, that the record will be prepared and presented to the court quickly. In practice, many parties simply stipulate to a hearing and briefing schedule and present the stipulation to the court for approval.

VII. BRIEFS                                            Return to Top

VIII. HEARING                                            Return to Top

IX. STATUS OF PROJECT PENDING LITIGATION
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YADDA, YADDA, YADDA

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