When processing project applications through City or County review, an applicant will undoubtedly want to hurry things up, to “get to yes” sooner, rather than later. Savvy developers know the pitfalls of taking shortcuts on CEQA, for example, by insisting on an exemption or a negative declaration when an EIR better protects the project.
However, what about the ordinary give and take between City staff and the applicant or its representatives to get things sped up? Applicants and their representatives typically resort to emails before application submittal and post-application submittal throughout the entire, lengthy CEQA and entitlement process.
Two Recent Cases Worth Noting
Two cases decided in 2013 put a damper on unfiltered, unlimited emails which attempt to push the CEQA EIR towards a desired end. The first is so confounding that a request to depublish it was filed on August 16, 2013 with the California Supreme Court. It is Citizens for Ceres v. Superior Court (2013) (5th Appellate Dist.) 217 Cal.App. 4th 889. This case creates uncertainty regarding the discovery (within subsequent litigation) of “communications” (such as emails) between the applicant and the City sent prior to a decision on the project. As with many a controversial CEQA case in California, this one involves City approval of a Walmart store. During litigation, the petitioners filed a motion to augment the administrative record to include emails and internal memoranda between the applicant and the City which were voluminous. The City’s opposition cited attorney-client, work product privileges subject to the common interest doctrine. The Court disagreed with the City, holding that communications pre–project approval were not protected by a “common interest” as between the City and the applicant vis-à-vis the EIR, since the applicant is only interested in a favorable EIR supportive of the approval of the Project and the City is ostensibly interested only in the development of a pure environmental analysis under CEQA. This rationale leads to balkanization between applicant and the City limiting communication. The 5th Appellate district in this case expressly declined to follow the 3rd Appellate district in California Oak Foundation v. County of Tehama (2009) 174 Cal.App. 4th 1217, thus providing the basis for the request for depublication. Nevertheless, it is sending a chill throughout otherwise normal communications between applicants and local governments statewide.
A further cause for this newfound CEQA censorship is Neighbors for Fair Planning v. City and County of San Francisco (2013) 217 Cal.App. 4th 540. This case was decided favorably to the applicant and the City and upheld the CEQA process. However, it underscored how careful cities must be not to “pre-commit” to a project prior to the certification of the EIR. Here, petitioners made multiple, colorable arguments that the City of San Francisco pre-committed to approve a project by undertaking an $800,000 loan in advance of the conclusion of the CEQA and other project approval proceedings. Thankfully, the court disagreed, keeping legal precedent consistent in California dating back to the famous State Supreme Court decision in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116. In all of these type of cases, there have been express disclaimers in the term sheets, loans and other agreements that preserved the parties’ ability not to proceed and the City’s ability to lawfully exercise its discretion to approve, conditionally approve or reject subsequent entitlements and CEQA documents.
However, it still is a question of fact. It is still arguable before a Court whether or not “the surrounding circumstances” committed the City to proceed with a project unlawfully prior to the conclusion of the CEQA process. With the Citizens for Ceres case allowing judicial access to Developer-City emails, caution is advised since rarely do those emails contain the types of disclaimers relied upon by California courts in the Save Tara lineage.
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