Depublication Of Fifth District CEQA Decision Creating Conflict On Common Interest Doctrine Sought By Infill Builders


While Real Party in Interest Wal-Mart Stores did not elect to seek California Supreme Court’s review of the Fifth District’s controversial decision in Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, the California Infill Builders Federation (Infill Builders) submitted an August 16, 2013 letter to the high court requesting that the opinion be depublished pursuant to Rule 8.1125 of the California Rules of Court. Infill Builders’ 6-page letter, authored by noted CEQA attorney Tina Thomas, “requests that the Court depublish the Opinion because it creates a new bright line rule rendering the common-interest doctrine inapplicable to pre-project approval communications between a project proponent and a decisionmaking agency.” It asserts this “uniform, inflexible rule is inconsistent with CEQA and the statutes establishing the common-interest doctrine” in numerous respects.

The gist of Infill Builders’ letter is that existing law allows courts desirable flexibility “to undertake a fact-specific analysis in determining whether the common-interest doctrine is applicable to communications between decisionmaking agencies and other parties during an administrative process” whereas the Ceres decision adopts a bright-line “one size fits all” rule lacking in statutory or regulatory support and contrary to the public interest in many of its potential applications. The letter asserts that potentially inappropriate applications of the new Ceres rule include public/private partnerships, CEQA litigation remands, pre-project approval CEQA litigation, and situations where a public agency is the project proponent.

The Supreme Court’s docket (Case No. S212788) reflects that it received Infill Builders’ depublication request letter on August 19, 2013, meaning that interested persons (or the rendering court) may submit responses in support of or in opposition to depublication within 10 days of that receipt date, i.e., through August 29, 2013. (Cal.Rules of Ct., Rule 8.1125(b)(1).)  For more on the Ceres decision, which has generated much criticism from the CEQA and land use bar, see my July 9, 2013 post, “No Common Interest In CEQA Compliance Prior to Project Approval, Holds Fifth District In City Of Ceres Decision That Conflicts With Third District’s California Oak Decision And Common Practice.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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