Mark Allen v. City of San Rafael

Appearances are required.

Petitioner Mark Allen’s (“Petitioner”) Motion to Augment the Administrative Record is GRANTED in part.

BACKGROUND

This case (“Merrydale Road Case”), challenges the city of San Rafael's (“the City” or “Respondent”) approval of the resolutions approving the Affordable Housing Agreement with the County and the City’s purchase of 350 Merrydale Road.

The relevant history is as follows:

On November 17, 2025, the City Council for the City of San Rafael took several legislative actions to alleviate the homeless crisis it currently faces. The Council’s actions included the following:

1. Adoption of a resolution declaring a shelter crisis, pursuant to Government Code section 8698, et seq.; 2. Adoption of an urgency ordinance, and the first reading of a regular ordinance, approving reasonable local standards and procedures for homeless shelters pursuant to the same Government Code provisions; 3. Adoption of a resolution authorizing the City to purchase the property at 350 Merrydale Road for the purpose of developing both an interim homeless shelter to house up to 65 individuals, as well as to eventually develop the site with up to 80 units of permanent affordable housing; and

4. Adoption of a resolution approving an “Affordable Housing Agreement” between the City and Marin County, under which the County granted to the City $8 million to fund the City’s acquisition of 350 Merrydale Road and its development of affordable housing on that site.

(See generally, Administrative Record (“AR”), 1:7-12, 76-102.) The City Council found each of these actions was exempt from CEQA. The City filed its Notice of Exemption the following day, on November 18, 2025. (AR 1:7-75.) The alternative CEQA exemptions the City identified included statutory exemptions applicable to homeless shelters and “low barrier navigation centers.” (AR 1:10-12.) In addition, the City prepared a 33-page study dated November 3, 2025, documenting how the project qualified for CEQA exemptions applicable to projects consistent with its General Plan (CEQA Guidelines § 15183) and to infill development projects (CEQA Guidelines § 15332). (AR 1:13-46.)

On November 26, 2025, Petitioner filed the present action, Allen v. City of San Rafael, Case No. CV0008353.

On December 1, 2025, the Council then had the second reading of, and adopted, the ordinance which was then codified as Ordinance No. 2057. (AR2 1:9902-9909.) On December 30, 2025, Petitioner filed the related action, Allen v. City of San Rafael, Case No. CV0008721 challenging Ordinance No. 2057 (“Ordinance Case”).

The City has since prepared and certified the Administrative Records for both related actions, lodging them with the Court on June 17, 2026. The Administrative Record for both cases consists of Volumes 1 through 51, Bates numbered AR 00007 through 09847, and is cited herein as “AR” followed by the volume and page numbers. The Administrative Record for the Ordinance Case also includes one additional volume of documents containing documentation from November 18 through December 1, 2026, Bates numbered 09900 through 09956. That additional volume is referred to as “AR2.”

Pursuant to the stipulation of the parties, the Court has coordinated both related actions, with simultaneous briefing schedules and a joint hearing on the merits scheduled for November 18, 2026, at 1:30 p.m. In the meantime, Petitioner has filed Motions to Augment the Administrative Record in both cases.

LEGAL STANDARD

The contents of the administrative record in a CEQA case are governed by Public Resources Code section 21167.6(e). (San Francisco Tomorrow v. City and County of San Francisco (2014) 228 Cal.App.4th 1239, 1258.) Section 21167.6(e) states that the administrative record shall include:

(1) All project application materials.

(2) All staff reports and related documents prepared by the respondent public agency with respect to its compliance with the substantive and procedural requirements of this division and with respect to the action on the project.

(3) All staff reports and related documents prepared by the respondent public agency and written testimony or documents submitted by any person relevant to any findings or statement of overriding considerations adopted by the respondent agency pursuant to this division.

(4) Any transcript or minutes of the proceedings at which the decision-making body of the respondent public agency heard testimony on, or considered any environmental document on, the project, and any transcript or minutes of proceedings before any advisory body to the respondent public agency that were presented to the decision-making body before action on the environmental documents or on the project.

(5) All notices issued by the respondent public agency to comply with this division or with any other law governing the processing and approval of the project.

(6) All written comments received in response to, or in connection with, environmental documents prepared for the project, including responses to the notice of preparation.

(7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project.

(8) Any proposed decisions or findings submitted to the decision-making body of the respondent public agency by its staff, or the project proponent, project opponents, or other persons.

(9) The documentation of the final public agency decision, including the final environmental impact report, mitigated negative declaration, or negative declaration, and all documents, in addition to those referenced in paragraph (3), cited or relied on in the findings or in a statement of overriding considerations adopted pursuant to this division.

(10)(A)(i) Any other written materials relevant to the respondent public agency's compliance with this division or to its decision on the merits of the project, including the initial study, any drafts of any environmental document or portions of the initial study or drafts that have been released for public review, and copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency's files on the project, and all internal agency communications, including staff notes and memoranda related to the project or to compliance with this division, but not including communications that are of a logistical nature, such as meeting invitations and scheduling communications, except that any material that is subject to privileges contained in the Evidence Code, or exemptions contained in the California Public

Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code), shall not be included in the record of proceedings under this paragraph, consistent with existing law.

Section 21167.6(e) “contemplates that the administrative record will include pretty much everything that ever came near a proposed development or to the agency's compliance with CEQA in responding to that development.” (County of Orange v. Superior Court (“County of Orange “) (2003) 113 Cal.App.4th 1, 8.)

The trial court makes the determination of the completeness of the administrative record. (Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 63, disapproved on other grounds by Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439.) Specifically, the trial court resolves disputes between the parties about what should be included in, or excluded from, the administrative record. (Ibid.)

In CEQA cases, the general rule is that a hearing on the petition for writ of mandamus is conducted solely on the record of the proceeding before the administrative agency. (Toyota of Visalia v. New Motor Vehicle Bd. (1987) 188 Cal. App.3d 872, 881; see World Business Academy v. California State Lands Commission (2018) 24 Cal.App.5th 476, 494.) The court can only admit additional evidence in limited circumstances. Specifically, extra-record evidence may be considered only if it is shown that (1) the evidence could not with reasonable diligence have been presented at the administrative hearing, or (2) was improperly excluded at that hearing. (Fairfield v. Superior Court of Solano County (1975) 14 Cal. 3d 768, 771-72; see e.g. W. States Petroleum Assn. v. Superior Ct. (1995) 9 Cal.4th 559, 578.) In addition, extra-record evidence is admissible only if it relevant. (Id., at p. 570.)

As a general proposition, the proper method of analysis for determining whether a particular item should be considered as evidence in a CEQA matter is to determine first whether the item is part of the administrative record pursuant to subdivision (e) of section 21167.6. If the item does not qualify for inclusion in the administrative record, then its admissibility can be determined under the rules applicable to extra-record evidence. (Madera Oversight Coalition, Inc. v. County of Madera, supra, 199 Cal.App.4th at p. 62, citing Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 366–367.)

DISCUSSION

With this Motion, Petitioner requests that the Administrative Record be augmented to include the following materials: 1) omitted operational records (fire, police, and codeenforcement records for the encampments) or certify that none exist; 2) documents regarding the City’s narrowed “study area”; 3) documents concerning the low barrier navigation center status; 4) internal agency communications or produce a privilege log for those withheld; 5) omitted creek-maintenance operational records; 6) written public comments and correspondence received by the City; 7) transcript of City’s own April 18, 2025 joint County-City homelessness subcommittee proceeding; and 8) that, to the extent the city has withheld or redacted materials, or holds closed-session materials bearing on this action, it should provide a privilege log, state the basis for each redaction, and identify the closed-session materials.

Petitioner’s argument is that these categories are part of the administrative record pursuant to subdivision (e) of section 21167.6. If they are not, Petitioner made no argument that they should be included under the extra-record evidence standard. Therefore, the Court will only consider the former and need not make any determination of the latter.

Respondent opposes the Motion arguing that Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 897-898 mandates rejection of Petitioner’s various arguments for inclusion of documents in other City files that neither City staff nor Councilmembers considered in approving the Project here. In Porterville, the administrative record for a CEQA challenge to a city’s approval of a development project did not include the city’s own environmental impact report it had previously prepared for its general plan, because there was no evidence that the city actually considered that analysis when it approved the project.

Omitted Operational Records

The Motion seeks the City's own Fire, Police, and Code-Enforcement Records regarding City responses to homeless encampments. As the Opposition points out, Public Resources Code subdivision (e)(10), relied upon by Petitioner, contains a limitation to those written materials “included in the respondent public agency's files on the project.” To the extent any such operational records were in the City’s file on the project and not included in the AR, they should be. The Court understands from the City’s Opposition that no such written materials were included in the City’s file on the project. If this is inaccurate in any way, the City should clarify that point immediately both to the Court and Petitioner.

Documents Re Narrowed Study Area

With his Motion, Petitioner argues that documents concerning the on-parcel watercourse — its physical extent, its tidal character, its jurisdictional status, and the constraints mapping that defined or excluded it — are “relevant to the [City’s] compliance with [CEQA]” within section 21167.6(e)(10). Per Petitioner, a record that includes the narrowed study but omits the materials needed to test whether the narrowing was proper is incomplete. Petitioner seeks the following categories of documents: (a) documents establishing the physical extent of the watercourse on the parcel; (b) documents concerning its tidal character; (c) documents concerning its jurisdictional status under state and federal law; and (d) the constraints mapping that defined or excluded the watercourse from the study.

The Court agrees that these documents would be part of the Administrative Record under subdivision (e)(10) and to the extent they exist in the project file, they should be produced. The Motion is therefore GRANTED as to this request.

Low Barrier Navigation Center Documents

Relying on Public Resources Code section 21167.6, subdivisions (e)(7) and (10), Petitioner argues that the Administrative Record does not include sufficient documents regarding how the interim homeless shelter will qualify as a “Low Barrier Navigation Center.” Respondent

counters that Petitioner overlooks the staff report, which provides City staff’s analysis of this issue. (See AR 201-206.)

To the extent any written evidence or correspondence submitted to, or transferred from the City, exists with respect to compliance with CEQA or with respect to the project, including the interim homeless shelter’s qualification as a Low Barrier Navigation Center, or any written communications re the same was made available to the public during the public review period or included in the City’s files on the project, they should be part of the Administrative Record. The City is not permitted to exclude such documents because it believes it has already established “substantial evidence” supporting the City’s factual findings by way of production of another document.

Accordingly, the Motion is GRANTED as to this request as well.

Internal Agency Communications

Section 21167.6(e)(7) requires “[a]ll internal agency communications, including staff notes and memoranda related to the project or to compliance with” CEQA. (Pub. Res. Code, § 21167.6, subd. (e)(7).) To the extent that any such communications exist, are not privileged, and have not been included in the Administrative Record, the Motion is GRANTED. To the extent any such communications exist but are being withheld on a claim of privilege or work product, the Court recognizes the difficulty of relying on an honor system with no way of testing the legal accuracy of the claim, or determining whether the asserted privilege or work product only protects certain portions of a document.

There must be some practical way to provide Petitioner with some modicum of assurance of the legitimacy of privilege and work product claims. The parties shall meet and confer on a proposed solution and present it to the Court at the hearing.

Creek-Maintenance Operational Records

The Motion seeks the City's Creek-Maintenance Operational Records. As the Opposition points out, subdivision (e)(10), relied upon by Petitioner, contains a limitation to those written materials “included in the respondent public agency's files on the project.” To the extent any such operational records were in the City’s file on the project and not included in the AR, they should be. The Court understands from the City’s Opposition that no such written materials were included in the City’s file on the project. If this is inaccurate in any way, the City should clarify that point immediately both to the Court and Petitioner.

Written Public Comments and Correspondence

The Opposition counters that the City has, in fact, included all timely submitted written public comments on the project into the Administrative Record. (See, e.g., AR 2:392-581; 9:3112-3331; 11:3770-12:3935.) For example, the November 1 email Petitioner references in his motion is included at AR510, etc.

Petitioner counters that all written comments received by the agency are part of the record of what the agency received, regardless of any later merits dispute about a comment’s

timeliness; timeliness goes to a comment’s weight or to exhaustion, not to whether it belongs in the record.

With this the Court agrees. (Pub. Res. Code, § 21167.6, subd. (e)(7).) All written evidence or correspondence submitted to, or transferred from, the City with respect to compliance with CEQA or with respect to the project should be part of the Administrative Record. Accordingly, the Motion is GRANTED as to this request.

The April 18, 2025 Special Joint County-City Homelessness Subcommittee Proceeding

On April 18, 2025, the City convened a noticed public meeting of the Special Joint County-City Homelessness Subcommittee, at which the Mayor and the City Manager discussed the interim-shelter project's purpose, its funding, its operational design, and its relationship to the City's camping-enforcement program. The Motion seeks the to have a transcript of that meeting, prepared by Petitioner for this litigation, included under Public Resources Code section 21167.6, subdivisions (e)(7) and (e)(10). The Opposition correctly points out that subdivision (e)(4) limits itself to transcripts or minutes of proceedings before any advisory body to the respondent public agency that were presented to the decision-making body before action on the environmental documents or on the project. Here there is no evidence the transcripts or minutes were presented to the decision making body.

Nor does it appear (e)(7) would apply as Petitioner makes it clear that he created the transcript for this lawsuit. It therefore does not qualify as “written evidence or correspondence submitted to, or transferred from, the respondent public agency.” It further does not appear that the transcripts prepared by Petitioner would be deemed as “either made available to the public during the public review period or included in the respondent public agency's files on the project” under subdivision (e)(10).

For these reasons, the Motion is DENIED as to this request.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for August, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1 Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov