Friday, June 15, 2012
S.C. Clarifies Exhaustion Rule on Environmental Challenges
By KENNETH OFGANG, Staff Writer
A statute requiring exhaustion of administrative remedies before a project may be challenged in court under the California Environmental Quality Act applies to an agency’s declaration that the project is categorically exempt from the act, the California Supreme Court ruled yesterday.
Justice Joyce L. Kennard, writing for a unanimous court, said the meaning of Public Resources Code Sec. 21177(a) was clear.
The statute permits the court to review an agency decision under CEQA only on grounds that were “presented to the public agency orally or in writing by any person during the public comment period . . . or prior to the close of the public hearing on the project before the issuance of the notice of determination.”
The court reversed the judgment of the First District Court of Appeal, which had ruled that Fred and D’Arcy Tomlinson and others did not need to exhaust administrative remedies in order to challenge the scope of a development approved by Alameda County.
Developer Y.T. Wong has been trying since 2006 to obtain approval to develop a single-family housing subdivision in the unincorporated Fairview area bordering Hayward. The original proposal was to merge two parcels of land into one parcel of 1.89 acres, which would then have been subdivided into 11 lots.
Area residents questioned the proposal based on traffic, parking, and other concerns. The planning commission, after hearing those concerns, voted to approve the subdivision as categorically exempt from CEQA under a state regulation specifically dealing with infill development.
County supervisors approved the determination that the subdivision was categorically exempt, and otherwise approved the development. The objectors then filed a writ petition in Alameda Superior Court challenging the approval on various grounds, including that the determination of categorical exemption was wrong.
They argued that there is no such exemption for projects located in unincorporated areas. But Alameda Superior Court Judge Fran Roesch ruled that the argument was barred because it was not raised before the planning commission or the supervisors.
The Court of Appeal, saying that conflicting decisions on the issue had been reached by two earlier panels, held that a challenge to the finding of a categorical exemption is not subject to the exhaustion requirement.
But Kennard said yesterday that the Court of Appeal was wrong.
She noted that Sec. 21177(e) expressly renders the exhaustion requirement inapplicable when there has been no public hearing or public comment period, and that there is no requirement for a public comment period prior to an exemption determination.
But in this case, unlike the case relied on by the Court of Appeal, Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, there were public hearings before the commission found the project exempt.
Notice of Determination
Under the statute, she explained, if a notice of determination is filed, an objection to the project is preserved only if it was raised at a public hearing prior to the filing. But if there is no notice, Kennard said, the objector is still subject to an exhaustion requirement, as long as a hearing is held before the project is approved.
“When, as in this case, a party is given such an opportunity, and it fails to raise a particular objection to the project, it may not raise that objection in court, because it has not satisfied the exhaustion requirement of section 21177’s subdivision (a),” the jurist said.
Kennard noted that the petitioners had maintained that they raised sufficient objections at public hearings, an issue left unresolved by the Court of Appeal’s conclusion that no such objections were necessary. That issue was left for the Court of Appeal on remand.
The case is Tomlinson v. County of Alameda (Wong), 12 S.O.S. 2865.
Copyright 2012, Metropolitan News Company