Public Entity Does Not Have to Provide Cost Estimate Under Public Resources Code Section 21167.6.
Ya know, unpublished decisions sometimes have gems in them. The next one is no departure, potentially indicating a departure with a prior appellate decision on a cost issue under Public Resources Code section 21167.6.
In Landwatch San Luis Obispo Co. v. Cambria Community Services Dist., Case No. B229545 (2d Dist., Div. 6 Feb. 22, 2012) (unpublished), a nonprofit corporation lost a CEQA challenge, inspiring the lower court to award the prevailing public entity with costs for preparing the administrative record. The nonprofit challenged the costs award, but was rebuffed on appeal. (The final cost award was $14,615.41, which we could say “c’mon” to, but everyone is entitled to do what they do--nonprofits, governmental entities, and private concerns.)
After determining that the appeal was jurisdictionally proper, Presiding Justice Gilbert on behalf of a 3-0 panel rejected nonprofit’s argument that the lower court had to consider its request for a cost estimate in awarding costs. Public Resources Code section 21167.6(b)(1) was the governing statute, but nothing in it requires the public agency to provide a cost estimate for preparing the record as a condition of receiving a prevailing costs award.
However, nonprofit did rely on some reasoning to the contrary in Hayward Area Planning Ass’n v. City of Hayward, 128 Cal.App.4th 176 (2005). The Second District, Division 6 panel was not impressed. Here is what the justices said in their opinion: “To the extent Hayward may be read as standing for the proposition that a public agency is required to provide a cost estimate on request, it cites no authority. [Citations omitted.] Nor does [appellant] cite any stautory authority for such a proposition .... We decline to follow Hayward in adding to section 21167.6 what the Legislature did not.” (Slip Opn., p. 5.)