Supreme Court resolves conflict as to when challenge to claimed exemption under CEQA can be raised for first time in court

Tomlinson v. County of Alameda

California Supreme Court, No. S188161

June 14, 2012

Petitioner Tomlinson challenged a project (housing subdivision) on various grounds at public hearings, but failed to challenge the claimed exemption from CEQA (as an in-fill project) until he filed his petition in court. Petitioner argued CEQA applied because the exemption expressly applies to city in-fill projects, whereas the project was in an unincorporated part of the county.

The trial court ruled Petitioner failed to exhaust his administrative remedies. The Court of Appeal reversed, following one case (Azusa) and declining to follow another case (Hines) on the same issue. The Supreme Court accepted the case to resolve the conflict.

Public resources Code section 21177(a) has an exhaustion of administrative remedies provision which states a party may only raise a challenge to an agency’s failure to comply with CEQA if the issue is raised either 1) during the public comment period (under CEQA) or 2) there is an opportunity to comment before a Notice of Determination (NOD). The Court of Appeal held the exhaustion of remedies provision does not apply to an agency’s decision that a project is categorically exempt from CEQA under the first scenario. The Supreme Court agreed with that analysis.

The Supreme Court, however, reversed the Court of Appeal’s ruling on the second scenario in which it again stated the section was inapplicable when an agency claims an exemption.  The Supreme Court held the public agency here gave notice to the public that it claimed the project was exempt from CEQA and that Petitioner had an opportunity to challenge it during the public comment period regardless of whether a NOD was filed. The Court distinguished these facts from those in Azusa, where the agency did not hold any public hearings before its decision to claim an exemption. The Court disagreed with the conclusion of the Court of Appeal in the instant case, and approved of the Hines decision, that the section 21177(a) did not apply because the county never filed a NOD. As long as the agency gives notice of the grounds for claiming an exemption, and there is an opportunity to challenge that before the project is approved, then the section applies. The absence of a NOD simply extends the deadline to file a petition in court.

Prepared by John Reaves


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