• Land Use Attorney Capitola

CASE UPDATES: CEQA, Attorney-Client Privilege and Parking); and the Public Nuisance Exception to Coastal Commission Jurisdiction

This month’s Land Use Update features: 1) a CEQA case clarifying several issues about what must be included in an administrative record, including attorney-client privilege issues; 2) a CEQA case focused on parking issues; 3) an unusual case involving the public nuisance exception to Coastal Commission jurisdiction under the Coastal Act.

1. In Citizens for Ceres v. Superior Court of Stanislaus County (2013) (5th 2013) Case No. F065690, –Cal.Rptr.2d–, a case challenging an EIR prepared for a shopping center and Wal-Mart store under the California Environmental Quality Act, the court of appeal granted a motion to augment the administrative record to compel the City to include thousands of pages of communications between the applicant’s and the City’s respective attorneys, which the City claimed were privileged.

A CEQA lawsuit is filed as a petition for writ of mandate under CCP § 1094.5, which essentially challenges a public agency’s action of approving the environmental review document prepared for a project as being an abuse of discretion. In these types of cases, the court’s review of the agency’s actions is limited to the “administrative record” aka “record of proceedings,” which is comprised of the project-related documents prepared and/or reviewed by staff and the agency decision-making body, documents circulated to the public, public comments, hearing transcripts, and et cetera. CEQA itself includes a long list of the types of documents to be included in the record. See Pub. Res. Code § 21167.6. Typically, Plaintiffs in CEQA cases will try to use any information contained in the record that appears contrary to, calls into question, or is critical of any of the facts and analysis on which the agency relied to support the plaintiff’s arguments attacking the agency’s decision. For that reason, many agencies take the position that internal staff communications, preliminary analyses and administrative draft-type documents are not properly part of the record because they may not accurately reflect the agency’s analysis. Documents protected by the attorney-client privilege, that is, confidential communications between agency staff and the agency’s attorney, need not be included in the record.

The Citizens for Ceres opinion held that communications about the project between the applicant’s attorney and the City’s attorney that occurred prior to the City’s approval of the project were not privileged and were required to be included in the administrative record. The City and Wal-Mart argued that they did not waive the attorney-client privilege by disclosing attorney communications to each other under the so-called “common interest” exception to the waiver rule, which applies when maintaining such confidentiality serves the common interests of the parties to the communication, but the court disagreed. Under CEQA, the court reasoned, a lead agency must evaluate a project and its potential environmental impacts objectively and cannot have any commitment to a project as specifically proposed by the applicant until after environmental review and approval is complete. That is because CEQA anticipates that a proposed project or related mitigations may change as the result of the environmental review process. Thus, the applicant’s and the City’s interests cannot become aligned until after the agency completes environmental review and approves the project.

In this case, the City anticipated that the project would be controversial, and thus, it made the strategic decision at the beginning of the environmental review process that all communications between the project applicant and the City would be through their respective lawyers in order to impart attorney-client privilege protection over these communications. Accordingly, the City omitted from the administrative record thousands of pages of communications between the City’s and applicant’s respective lawyers, claiming that these documents were protected by the attorney-client privilege and attorney work-project doctrine through the “common-interest” doctrine.

The court explained that the common-interest doctrine allows disclosure between separate parties, without waiver of privileges, of communications otherwise protected by the attorney-client privilege or work-product doctrine where the disclosure is necessary to accomplish the purpose for which the legal advice was sought. It applies where the third-party is an agent or assistant of the litigant (not relevant in this case), and it applies where the third-party has interests of its own that are aligned with those of the litigant. In this case, the court held that the common-interest doctrine did not protect the communications between the applicant’s and the City’s lawyers that occurred prior to the City’s approval of the project, because the City’s and the applicant’s interests were not necessarily aligned until after the project was approved. Under CEQA, the court reasoned, a lead agency must evaluate the project and its potential environmental impacts objectively and cannot have any commitment to the project as specifically proposed under after the agency completes environmental review and approves the project, as CEQA anticipates that a proposed project or related mitigations may change as the result of the environmental review process.

Regarding more general attorney-client privilege and work-product doctrine issues, the court held that: 1) in-camera review of documents is only available if the attorney-client privilege or unqualified work-product protection is not claimed (that is, in camera review is available when the qualified work-product doctrine is claimed); 2) the party claiming the privilege has the burden of providing evidence to support each element of the asserted privilege for each document (through the use of a privilege log or something equivalent); and 3) a communication does not become privileged simply by copying (CCing) in-house or outside counsel, rather, it must be shown that the communication was being submitted to the attorney in the course of the attorney-client relationship for the purpose of obtaining the attorney’s legal opinion or advice.

In Taxpayers v. Accountable School Bond Spending v. San Diego Unified School District (4th Dist. 2013) Case No. D060999, –Cal.Rptr.2d–, the San Diego Unified School District approved a project to add lighting to an existing high school football stadium based on a mitigated negative declaration (MND). The court held that the environmental review was inadequate in that the MND made several false assumptions and that there was substantial evidence in the record to support a fair argument that the project would have significant parking and traffic impacts. Regarding the parking analysis, the court held that the District abused its discretion by not establishing a baseline figure for average attendance at daytime football games from which to compare the potential increase in football game attendance that is expected on Friday nights. The court also held that the District abused its discretion by concluding that a parking shortage of 174 on-site spaces would be filled by nearby street parking spaces without making any attempt to ascertain the total number of such off-site spaces or the number of such spaces that are typically available on Friday nights.

Most importantly, the court held that a project’s impact on parking can itself be a significant impact on the physical environment, disagreeing with the First Appellate District’s opinion in San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656. San Franciscans has been interpreted to hold that parking impacts are not an environmental impact under CEQA (just an impact on driver convenience), although parking impacts can trigger secondary impacts on the environment, such as traffic or air quality impacts.

City of Dana Point v. California Coastal Commission (4th Dist. 2013) Case No. D060260, –Cal.Rptr.2d–, involved a project to develop 125 luxury homes on an oceanfront slope located between a new park at the top of the slope and a newly dedicated public beach at the bottom of the slope, with public trails that traversed the site. Near project completion, the City adopted an ordinance requiring the installation of gates and limiting the hours of use of the trails through the subdivision. Several members of the public complained about the ordinance (presumably, because they were opposed to limits on public access to the park and the beach), and filed administrative appeals with the Coastal Commission. The Commission ruled that the ordinance requiring gates and limiting the hours of public access required a coastal development permit under the Coastal Act. The City then filed a lawsuit against the Coastal Commission, asking the court to rule that the Commission lacked jurisdiction over the City’s ordinance because the ordinance was exempt from the Coastal Act under a section of the Act providing that, “[n]o provision of this division is a limitation on … the power of any city or county or city and county to declare, prohibit, and abate nuisances.” Pub. Res. Code § 30005(b).

The court of appeal ruled that the Commission did not have administrative appellate jurisdiction (under Pub. Res. Code § 30625), because a city’s enactment of an ordinance does not amount to an “appealable action” under the Act; it found that “appealable actions” were limited to local agency decisions on coastal development permit applications or claims of exemption. However, the record apparently lacked any evidence of the alleged nuisance that the City was trying to prevent, and the court remanded the case to the trial court and ruled that the City was required to demonstrate that it had exercised its nuisance abatement powers in good faith and had not adopted the ordinance as a pretext to avoid its coastal development permit obligations.

[This was a clever attempt by the City to prevent public beach access through this new luxury development. The court of appeal apparently saw through this subterfuge, and it is unlikely the City will be able to prove up its alleged nuisance justification in order to avoid the need for a coastal development permit for the gate. This issue should have been addressed, if at all, at the time the coastal development permit was issued for the entire development. On the other hand, the court of appeal’s legal justification for remanding the case is somewhat suspect, and an appeal to the California Supreme Court would not be surprising.]

Copyright 2013 Berliner Cohen. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.

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Miles J. Dolinger
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