Tomlinson v. County of Alameda, No. A125471 (June 18, 2010) available at CourtWebsite.
In a decision that clarifies the standards that public agencies should apply when relying on categorical exemptions, a California court of appeal recently held that the County of Alameda applied the wrong legal standard for exempting an in-fill subdivision.
The court noted that to rely on a categorical exemption, the administrative record must disclose substantial evidence of every element of the contended exemption. Looking at each element of the categorical exemption for in-fill developments under CEQA Guidelines section 15332, the court found that the critical hanging point in the case was the requirement that the in-fill development be “within city limits” for the exemption to apply.
In the case, the applicant’s project was located in the an unincorporated part of the county. Although the County of Alameda argued that the project site was surrounded by highly urbanized development, the court rejected such an expanded interpretation of “within city limits.” Rather, the court held that a plain reading of the exemption required that the “within city limits” element could only be satisfied if the project was located within the boundaries of a municipality.
Additionally, the court noted there was not a procedural requirement for the challenging party to exhaust its administrative remedies by making specific comments to the county regarding the improper application of the categorical exemption. The court held that the exhaustion requirement under Public Resources Code section 21177 did not apply because (1) CEQA does not provide for a public comment period before an agency makes an exemption finding, and (2) there is no "public hearing before a notice of determination is issued," as an NOD is not filed if the agency declares an exemption.
The court of appeal remanded the case to the trial court with instructions to issue a writ of mandate directing the county to set aside its decision. This case highlights the care that should be taken when applying a categorical exemption for a project by providing substantial evidence supporting each element of the exemption.
