Nothing in Common: Fifth District Court of Appeal Rejects City-Applicant Protections for Pre-Project Approval CEQA Communications

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.

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