Tag Archives: California

CEQA Censorship

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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