Monday, October 11, 2010

Requirements for Exhausting Administrative Remedies Before Challenging CEQA Exemptions May or May Not Apply

Tomlinson v. County of Alameda (Oct. 6, 2010) No. A125471, available at CourtWebsite [discussing Hines v. California Coastal Commission (June 17, 2010) 186 Cal.App.4th 830, available at CourtWebsite.]

This case was initially decided by the court on June 18, 2010 [CEQA Blog Summary]. However, at almost the same time, another court issued its decision in Hines v. California Coastal Commission (June 17, 2010) 186 Cal.App.4th 830, which dealt with similar requirements for “exhausting” administrative remedies under CEQA. Under the “exhaustion” doctrine, project challengers generally must raise their arguments to the lead agency before they can petition the court to review the agency’s decision. Due to the closeness of these cases, the court decided to rehear this portion of its decision, and – in the end – highlighted the extreme legal complexities involved with “exhausting” administrative remedies. Importantly, this revised decision does not change the court’s holding regarding what constitutes “within city limits” for purposes of exempting infill projects under CEQA Guidelines, section 15332, as was previously reported.

As the new decision notes, the Hines court held that parties challenging a project have failed to “exhaust” under Public Resources Code, section 21177, subdivision (e), if there are “public hearings that include environmental review, ample notice of such hearings is given notifying the public of the agency’s reliance on the exemption, and the public does not raise an objection to the exemption despite such an opportunity to do so.” Throughout the planning process, the Hines challengers did not raise any issue regarding purported CEQA violations at any stage, despite ample notice that staff considered the project exempt, and there was ample opportunity to raise an objection. As a result, the Hines court would have had to decide factual questions about whether wildlife would be impacted and whether the project would open the door to successive projects. This would have entailed much more than merely reviewing the agency's decision. Thus, the court indicated it was appropriate for the Hines court to hold that the challengers could not petition for review of the agency action, because they failed to exhaust their administrative remedies by not raising such CEQA challenges to the agency.

The court distinguished the Tomlinsons' argument, because the question at issue - whether the project occurred “within city limits” for applying the "infill" exemption - did not require particular agency expertise or an evidentiary determination. Thus, the court stood by its original application of Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, that “exhaustion” under section 21177, subdivision (a), would only apply if CEQA provides a public comment period or there is a public hearing before a notice of determination is issued. Finding that exemption determinations do not have these requirements, the court held that the Tomlinsons were not required to "exhaust" by raising specific objections that the project was not “within city limits” in order to seek judicial review of the applied "infill" exemption.

The court’s rehearing of this matter, and its discussion and application of Hines and Azusa, importantly highlights the complexity of "exhaustion" arguments that can be raised related to challenges against a CEQA exemption. Through these decisions, courts have required exhaustion in situations where a lack of comments rendered the court unable to discern the agencies’ factual bases for the exemption; however, courts have not required exhaustion when the exemptions' factual bases were clearly discernable for judicial review. Therefore, the ability of a challenger to seek judicial review without having raised specific arguments to the agency is likely to be impacted by the availability of evidence for the court to adequately perform a review of the exemption.