Jennifer J. Farrell
Direct Dial: (714) 338-1884
E-mail: [email protected]
January 17, 2023
R u t a n & Tu c k e r , L L P | 1 8 5 7 5 J a mb o r e e R o a d, 9 t h F l o o r I r v i n e, C A 9 2 6 1 2 | 7 1 4- 6 4 1- 5 1 0 0 | Fa x 7 1 4- 546 -9 0 3 5 O r a n g e C o u n ty | P a lo A lto | S a n F ra n c is c o | w w w .r u ta n . c o m 2905/035458-0011
18712265.9 a01/17/23
VIA E-MAIL
Sheila M. Sannadan
Adams Broadwell Joseph & Cardozo
601 Gateway Boulevard, Ste. 1000 South San
Francisco, CA 94080 Email:
[email protected]
Re: City of Fontana’s Response to January 12, 2023 and January 4, 2023 Correspondence Re: Mitigated Negative Declaration for the Fontana Square Project (Master Case No. 20-083).
Dear: Ms. Sannadan,
This office represents the City of Fontana (“ City”) as its Assistant City Attorney . Our office is in receipt of your Janu ary 12, 2023 letter seeking an extension of the review period for the Mitigated Negative Declaration (“MND”) for the Fontana Square Project (Master Case No. 20-083) (“Extension Letter ”), your January 4, 2023 letter requesting access to documents (“Document Request Letter”), and your January 4, 2023 Public Records Act Request for “any and all records referring or related to the Fontana Square Project, Master Case No. 20 -083” (“CPRA Letter”), sent on behalf of your client Californians Allied for a Responsible Economy (“CARE CA”). Each of the aforementioned letters relates to the MND for the Fontana Square Project (Master Case No. 20-083) (“Project”).
Your Extension Letter requests that the City extend the public review and comment period on the MND for the Project because CARE CA has not been able to obtain and review certain documents cited in the MND. Your letter asserts that the California Environmental Quality Act (“CEQA”) requires the City to provide around 40 documents in response to your Document Request Letter which you describe as submitted “pursuant to CEQA,” specifically CEQA section 21092(b)(1) and CEQA Guidelines section 15072(g)(4), requesting “ immediate access to all documents referenced or relied upon;” in the MND.”
As more specifically set forth herein, the City respectfully declines your request to extend the public review and comment period for the Project, because the City has fully complied with its obligations pursuant to CEQA section 21092(b)(1) and CEQA Guidelines section 15072(g)(4).
CEQA section 21092(b)(1) includes public notice requirements for agencies preparing environmental impact reports or negative declarations. It provides, in relevant part “[t] he notice shall specify . . . the address where copies of the draft environmental impact report or negative declaration, and all documents referenced in the draft environmental impact report or negative
Sheila M. Sannadan
January 17, 2023
2905/035458-0011
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declaration, are available for review ….” (Pub. Res. Code, § 21092(b)(1) [ emphasis added ].) CEQA Guidelines section 15072(g)(4) clarifies that the notice shall specify “[t] he address where copies of the proposed negative declaration or mitigated declaration and all documents incorporated by reference in the proposed negative declaration or mitigat ed declaration will be available for public review. This location shall be readily accessible to the public during the lead agency's normal working hours.” (14 Cal. Code Regs., § 15072(g)(4) [emphasis added].) CEQA Guidelines section 15072(g)(4) was most recently amended effective 2018 to clarify that the term “referenced in the proposed negative declaration or mitigated declaration ” for the purposes of CEQA section 21092 and CEQA Guidelines section 15072(g)(4) means “ incorporated by reference” as described in CEQA Guidelines section 15150.1 In its comments on the amendment, the Governor’s Office of Planning and Research observed that “ if the requirement for the lead agency to make documents available for public inspection were to include all documents s imply referenced or cited in an EIR or negative declaration, the requirement would be burdensome, unnecessary and unreasonable on lead agencies .” These authorities clarify that CEQA requires that the City provide notice of the address where all documents incorporated by reference in the MND are available for public inspection.
The City’s public notice specified that the MND and all documents incorporated by reference in the MND are available for review at Fontana City Hall, 8353 Sierra Ave., Fontana, CA 92335. The City has therefore complied with its obligations pursuant to pursuant to CEQA section 21092(b)(1) and CEQA Guidelines section 15072(g)(4).
The City will continue responding to your requests for documents in your CPRA Letter in compliance with the California Public Records Act (Gov. Code, §§ 7920.000 et seq) (“CPRA”).
However, the City rejects the assertion in your CPRA Letter that CPRA section 6253 (recodified at Government Code Section 7922.525) entitles you to “immediate access” to the rec ords requested, and that the CPRA response timelines do not apply.
CPRA section 7922.525 provides in full:
(a) Public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise provided.
(b) Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.
This section is part of the overall framework of the CPRA, but does not provide a separate right of access to the timelines for response. (See Gov. Code, § 7922.535.) CPRA Section 792.525 provides the general public right to inspect records, including a right to inspect records at the
1 Governor’s Office of Planning and Research, November 2017 Proposed Updates to the CEQA Guidelines [https://opr.ca.gov/docs/20171127_Comprehensive_CEQA_Guidelines_Package_Nov_2017.pdf].
Sheila M. Sannadan
January 17, 2023
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business location of a local agency during business hours. This section does not provide an alternative avenue to circumvent the timeframes provided in the CPRA. ( See Bruce v. Gregory (1967) 65 Cal.2d 666, 676 [right to public records constrained by an “inherent reasonableness limitation … to protect the safety of the records against theft, mutilation or accidental damage, to prevent inspection from interfering with the orderly function of his office and its employees, and generally to avoid chaos in the record archives.”]; Rosenthal v. Hansen (1973) 34 Cal.App.3d 754, 761.)
For these reasons, the City respectfully declines your request to extend the public review and comment period for the Project.
Very truly yours,
RUTAN & TUCKER, LLP
Jennifer J. Farrell
Assistant City Attorney for the City of Fontana
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