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Amicus Brief Filed on Behalf of League of California Cities

In a case of great importance to anyone who uses an Agreement to Negotiate or Memorandum of Understanding to move development projects forward, Aleshire & Wynder was privileged to file an amicus curiae brief in the California Supreme Court on behalf of the League of California Cities in an important CEQA case, Save Tara v. West Hollywood.  The case calls into question the ability of local communities to approve contingent agreements (exclusive negotiation agreements, exclusive rights to negotiate, memoranda of understanding) for complex development proposals before CEQA analysis has been completed.  The Court of Appeal decided an EIR should have been circulated and certified before West Hollywood approved such an agreement for an affordable housing project for which Federal funding was being requested.  The Court reached that result even though that agreement expressly stated it was conditioned on the CEQA process being satisfactorily completed, including any required mitigation measures, and all land use entitlements being granted, and did not limit the City's discretion in either regard.  Before the Court of Appeal reached its decision, West Hollywood completed a full EIR for the proposed project.  However, the Court of Appeal concluded that EIR was a post hoc action and did not meet CEQA's intent because the EIR had not been prepared as soon as sufficient information about the project was available.  The amicus brief the firm filed on September 20, 2007, explains the "trigger" for CEQA review, as established by CEQA, recent case law and long-practiced local governmental procedures, is before a commitment is made by the local government to proceed with the development.  We anticipate a ruling from the Supreme Court by the summer of 2008.  The brief was prepared by David J. Aleshire and Joseph W. Pannone.