Inserting uncertainty in the already murky area of the scope of the administrative record under the California Environmental Quality Act (CEQA), California’s Fifth District Court of Appeal has held that pre-project approval communications between a lead agency and a project proponent are not protected under the attorney-client privilege and must be included in the record. This decision creates a split within the appellate courts, conflicts with established land use practice and creates much uncertainty for lead agencies and project proponents with regard to the scope of the administrative record and how to communicate during the CEQA process.
The decision, Citizens for Ceres v. Superior Court of Stanislaus County (Case No. F065690 (Cal. Ct. App. 5th, July 8, 2013)) (Ceres), rejects the position that there is any “common interest” between a lead agency and developer at the pre-approval stage and thus any communication between agency counsel and an applicant waives any privilege and such communication must be included in the record.
Please see full alert below for more information.
Firefox recommends the PDF Plugin for Mac OS X for viewing PDF documents in your browser.
We can also show you Legal Updates using the Google Viewer; however, you will need to be logged into Google Docs to view them.
Please choose one of the above to proceed!
LOADING PDF: If there are any problems, click here to download the file.