Tomlinson v. County of Alameda

Filed 6/14/12

IN THE SUPREME COURT OF CALIFORNIA

FRED TOMLINSON et al., )
)
Plaintiffs and Appellants, )
) S188161
v. )
) Ct.App. 1/5 A125471
COUNTY OF ALAMEDA et al., )
) Alameda County
Defendants and Respondents; )
)
Y.T. WONG et al., )
)
Real Parties in Interest and ) Super. Ct. No. RG08396845
Respondents. )
____________________________________)

In this case, a developer applied to a county planning department for
approval to build a housing subdivision. The department and the developer gave
written notice to various agencies, to neighbors, and to interested parties. The
notice described the proposed project, mentioned the department‟s determination
that the project was categorically exempt from environmental law requirements,
and solicited comments. After holding public hearings, the county determined that
the proposed project was categorically exempt from compliance with
environmental law requirements, and approved it.

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 The county‟s approval was then challenged in court. At issue here is a
statutory provision stating that a public agency‟s approval of a proposed project
can be challenged in court 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.” (Pub. Resources Code, § 21177, subd. (a).) Does this
exhaustion-of-administrative-remedies provision apply to a public agency‟s
decision that a project is categorically exempt from environmental law
requirements? We hold that it does.
I
The California Environmental Quality Act (Pub. Resources Code, § 21000
et seq.)1 (CEQA) and the regulations implementing it (Cal. Code Regs., tit. 14,
§ 15000 et seq.) embody California‟s strong public policy of protecting the
environment. “The basic purposes of CEQA are to: [¶] (1) Inform governmental
decision makers and the public about the potential, significant environmental
effects of proposed activities. [¶] (2) Identify ways that environmental damage
can be avoided or significantly reduced. [¶] (3) Prevent significant, avoidable
damage to the environment by requiring changes in projects through the use of
alternatives or mitigation measures when the governmental agency finds the
changes to be feasible. [¶] (4) Disclose to the public the reasons why a
governmental agency approved the project in the manner the agency chose if
significant environmental effects are involved.” (Cal. Code Regs., tit. 14,
§ 15002.)

1 Unless otherwise indicated, all further statutory references are to the Public
Resources Code.

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 To achieve these goals, CEQA and the implementing regulations provide
for a three-step process. In the first step, the public agency must determine
whether the proposed development is a “project,” that is, “an activity which may
cause either a direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment” undertaken, supported,
or approved by a public agency. (§ 21065.)
The second step of the process is required if the proposed activity is a
“project.” The public agency must then decide whether it is exempt from
compliance with CEQA under either a statutory exemption (§ 21080) or a
categorical exemption set forth in the regulations (§ 21084, subd. (a); Cal. Code
Regs., tit. 14, § 15300). A categorically exempt project is not subject to CEQA,
and no further environmental review is required. (Muzzy Ranch Co. v. Solano
County Airport Land Use Com. (2007) 41 Cal.4th 372, 380; San Lorenzo Valley
Community Advocates for Responsible Education v. San Lorenzo Valley Unified
School Dist. (2006) 139 Cal.App.4th 1356, 1373.) If the project is not exempt, the
agency must determine whether the project may have a significant effect on the
environment. If the agency decides the project will not have such an effect, it
must “adopt a negative declaration to that effect.” (§ 21080, subd. (c); see Cal.
Code Regs., tit. 14, § 15070; Muzzy Ranch Co. v. Solano County Airport Land Use
Com., supra, at pp. 380-381.) Otherwise, the agency must proceed to the third
step, which entails preparation of an environmental impact report before approval
of the project. (§§ 21100, subd. (a), 21151, subd. (a).)
II
In 2006, real parties in interest Y.T. Wong and SMI Construction, Inc.
(hereafter collectively Wong), submitted an application to the Alameda County

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Planning Department2 to develop a single-family housing subdivision in the
Fairview area, an unincorporated part of the county. The application proposed to
merge two parcels of land into one parcel of 1.89 acres, to subdivide the merged
parcel into 11 lots, and to develop the lots with single-family homes. The
proposed subdivision was subject to two long-term development plans: the
General Plan for the Central Metropolitan, Eden, and Washington Planning Units
of Alameda County, and the Fairview Area Specific Plan. In April 2007, in
response to concerns raised by various public agencies, Wong submitted a revised
application.
On May 14, 2007, the planning department gave written notice of the
proposed housing development to a number of agencies, neighbors, and interested
parties. The notice described the proposed project and solicited comments. The
notice also stated that the project was exempt from CEQA compliance “based on
the site‟s existing conditions (developed as a low-density residential site with
gently sloping land and minimal habitat value), and conformance to the existing
zoning for the site (R-1, Fairview Area Specific Plan).”
On June 22, 2007, Wong mailed to neighbors of the proposed housing
subdivision a notice of a public hearing set for July 2 to address a preliminary plan
review by the planning commission. Both the notice and the commission‟s
preliminary plan review stated that the proposed development was exempt from
CEQA compliance, “according to Article 19, Section 15332 In-fill Development
Projects, as the proposed development would occur in an established urban area,
[would] not significantly impact traffic, noise, air or water quality, and [could] be

2 The county‟s planning commission reviews and acts upon development
applications. The county‟s planning department assists and advises the
commission.

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served by required utilities and public services.”3 (An in-fill project is one that,
among other things, is “within city limits” on a “site of no more than five acres
substantially surrounded by urban uses” (Cal. Code Regs., tit. 14, § 15332).)4
The notice also advised: “If you challenge the decision of the Commission in
court, you may be limited to raising only those issues you or someone else raised
at the public hearing described in this notice, or in written correspondence
delivered to the Planning Commission at or prior to the public hearing.”
At the July 2, 2007, hearing before the planning commission, residents in
the area of the proposed housing subdivision expressed concerns about loss of
views, incompatibility with the neighborhood, increased traffic, and insufficient
parking. Among those critics were Fred and D‟Arcy Tomlinson, petitioners in this
matter. Fred Tomlinson suggested scaling down the proposed project. The
planning commission continued the matter to an unspecified date. Thereafter, in
an August e-mail message to the planning department and in a November letter to
the planning department signed by more than 80 residents, petitioners expressed
concerns about the proposed development.

3 The notices here at issue cite “Article 19, Section 15332” because section
15332 appears in article 19, of chapter 3, of division 6, of title 14 of the California
Code of Regulations. Article 19 sets forth categorical or regulatory exemptions to
CEQA compliance.
4 The categorical or regulatory exemption for an in-fill development is
defined in title 14, section 15332 of the California Code of Regulations. The
requirements are that: “(a) The project is consistent with the applicable general
plan designation and all applicable general plan policies as well as with applicable
zoning designation and regulations. [¶] (b) The proposed development occurs
within city limits on a project site of no more than five acres substantially
surrounded by urban uses. [¶] (c) The project site has no value, as habitat for
endangered, rare or threatened species. [¶] (d) Approval of the project would not
result in any significant effects relating to traffic, noise, air quality, or water
quality. [¶] (e) The site can be adequately served by all required utilities and
public services.” (Italics added.)

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 On December 17, 2007, after hearing the residents‟ concerns, the planning
commission, acting upon the recommendation of the planning department,
approved the proposed housing subdivision, stating it was categorically exempt
from CEQA compliance “pursuant to Section 15532 (Infill Development).”
Petitioners appealed that decision to the Alameda County Board of Supervisors.
After a public hearing on April 8, 2008, at which petitioners presented their
concerns, the board denied the appeal, citing the planning department‟s
determination that the proposed housing subdivision “was Categorically Exempt
pursuant to Section 15332 (Infill Development).”
Petitioners then, without success, petitioned the Alameda County Superior
Court for a writ of mandate to set aside the county‟s approval of the proposed
housing development. Of the various violations asserted in the petition, the one
relevant here is the claim that the in-fill categorical exemption to CEQA
compliance, on which the county‟s approval was based, did not apply because the
proposed project was in an unincorporated part of the county and therefore did not
meet the exemption‟s requirement that the project be “within city limits.” (See
ante, fn. 4.) On this claim, the trial court ruled that petitioners had failed to
exhaust their administrative remedies as required by section 21177, because
“[n]either petitioners nor anyone else ever objected to the County‟s use of the
exemption on the basis that the Project will not be built within city limits.”
The Court of Appeal reversed. Relying on Azusa Land Reclamation Co. v.
Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 (Azusa), it
concluded that section 21177‟s exhaustion-of-administrative-remedies
requirement does not apply when the court challenge pertains to a public agency‟s
decision that a proposed project is categorically exempt from CEQA compliance.
The Court of Appeal disagreed with the decision to the contrary in Hines v.

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California Coastal Com. (2010) 186 Cal.App.4th 830 (Hines). We granted review
to resolve the conflict.
III
Wong contends the Court of Appeal erred in holding that section 21177‟s
exhaustion-of-administrative-remedies requirement does not apply to a public
agency‟s decision that a project is categorically exempt from compliance with
CEQA. We agree.
Subdivision (a) of section 21177 states that a court action alleging a public
agency‟s failure to comply with CEQA may be brought only if “the alleged
grounds for noncompliance with [CEQA] were presented to the public agency
orally or in writing by any person during the public comment period provided by
this division or prior to the close of the public hearing on the project before the
issuance of the notice of determination.” (Italics added.) Subdivision (e) of
section 21177 states that the statute‟s exhaustion-of-administrative-remedies
requirement “does not apply to any alleged grounds for noncompliance with
[CEQA] for which there was no public hearing or other opportunity for members
of the public to raise those objections orally or in writing prior to the approval of
the project . . . .” As the above-italicized statutory language shows, application of
subdivision (a)‟s exhaustion-of-administrative-remedies provision requires either
(1) a public comment period provided by CEQA (the public comment provision)
or (2) an opportunity for public comment at public hearings before issuance of a
notice of determination (the public hearing provision).
The Court of Appeal here relied on Azusa, supra, 52 Cal.App.4th at page
1210. In that case the court held that section 21177‟s “public comment” provision
is inapplicable when, as occurred here, a public agency has determined that a
project is categorically exempt from CEQA compliance. That provision, the Court
of Appeal here noted, only comes into play if, in the words of the statute, a “public
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comment period” has been “provided by” CEQA. (§ 21177, subd. (a).) As the
court pointed out, CEQA does not provide for a public comment period preceding
an agency‟s exemption determination. (See § 21092 [providing for public
comment only as to negative declarations and environmental impact reports].)
Therefore, the Court of Appeal concluded, the exhaustion provision‟s “public
comment period” does not apply here. We agree.
The Court of Appeal then considered the exhaustion requirement‟s public
hearing provision that no court action alleging a public agency‟s noncompliance
with CEQA can be brought if the underlying grounds were not raised “before the
issuance of the notice of determination” by the agency. (§ 21177, subd. (a).) That
provision, the Court of Appeal concluded, does not apply when, as occurred here,
the public agency determines that the project is categorically exempt from CEQA
compliance. In that situation, the court said, no public hearing precedes the
agency‟s notice of determination because such a notice “is never filed if the
agency declares an exemption.” In support, the Court of Appeal cited Azusa,
supra, 52 Cal.App.4th at page 1210. We see a significant difference, however,
between Azusa and this case. In Azusa, the public agency did not hold any public
hearings preceding its decision that the proposed project was exempt from CEQA
compliance. (Id. at p. 1211.) In contrast, here the public agency did hold public
hearings that gave interested parties, including petitioners, the opportunity to raise
objections or concerns to the proposed project before the agency‟s exemption
finding. (See Hines, supra, 186 Cal.App.4th at p. 854 [§ 21177‟s subd. (a)
exhaustion provision applies when there was ample notice of public hearing].)
We disagree with the Court of Appeal‟s conclusion that the public hearing
provision in section 21177‟s subdivision (a) does not apply when, as here, no
notice of determination is filed. If a notice of determination is filed, the public
hearing provision requires a party wishing to challenge the project in court to raise
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the party‟s objections to the project at a public hearing held before the notice of
determination is filed. But if no such notice is filed, the public hearing provision
nonetheless applies. In that situation, the challenging party is still required to
exhaust its administrative remedies by presenting its objections to the project to
the pertinent public agency, so long as it is given the opportunity to do so at a
public hearing 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 absence of a notice of determination does not render improper the
agency‟s approval of the proposed project based on an exemption finding. It only
extends the time within which to initiate a lawsuit challenging the public agency‟s
decision. (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48
Cal.4th 481, 501.) Under section 21177‟s subdivision (e) the exhaustion
requirement‟s application is conditioned upon the holding of public hearings to
present any objections to or concerns about the proposed project, thus confirming
that what matters is the opportunity for comment at such public hearings, not the
filing of a notice of determination.
For the reasons given above, we conclude that the exhaustion-of-
administrative-remedies requirement set forth in subdivision (a) of section 21177
applies to a public agency‟s decision that a proposed project is categorically
exempt from CEQA compliance as long as the public agency gives notice of the
ground for its exemption determination, and that determination is preceded by
public hearings at which members of the public had the opportunity to raise any
concerns or objections to the proposed project. (Accord, Hines, supra, 186
Cal.App.4th at pp. 852-855.)

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 We perceive no conflict between our conclusion and the principles
underlying the common law doctrine requiring exhaustion of administrative
remedies before bringing a court action. We have described that doctrine as “ „a
jurisdictional prerequisite to resort to the courts.‟ ” (Coachella Valley Mosquito &
Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35
Cal.4th 1072, 1080.) “ „ “The basic purpose for the exhaustion doctrine is to
lighten the burden of overworked courts in cases where administrative remedies
are available and are as likely as the judicial remedy to provide the wanted relief.”
[Citation.] Even where the administrative remedy may not resolve all issues or
provide the precise relief requested by a plaintiff, the exhaustion doctrine is still
viewed with favor “because it facilitates the development of a complete record that
draws on administrative expertise and promotes judicial efficiency.” [Citation.] It
can serve as a preliminary administrative sifting process [citation], unearthing the
relevant evidence and providing a record which the court may review.‟ ” (Sierra
Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 501.)
In light of our conclusion on the legal issue presented — applicability of
section 21177‟s exhaustion-of-administrative-remedies requirement to a public
agency‟s decision that a project is categorically exempt from compliance with
CEQA — we express no view on petitioners‟ remaining contentions that their
objections at the public hearings were sufficient to satisfy the exhaustion
requirement and that the public agency misled them.
DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court so it can address petitioners‟ remaining contentions that,

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although raised by petitioners, were not resolved by that court because of its
conclusion that section 21177‟s exhaustion-of-administrative remedies
requirement was inapplicable.

KENNARD, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Tomlinson v. County of Alameda
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 188 Cal.App.4th 1406
Rehearing Granted

__________________________________________________________________________________

Opinion No. S188161
Date Filed: June 14, 2012
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: Fran Roesch

__________________________________________________________________________________

Counsel:

Remy, Thomas, Moose & Manley and Sabrina V. Teller for Plaintiffs and Appellants.

Law Office of Jewell Hargleroad and Jewell J. Hargleroad for the League of Women Votes of the Eden
Area and Fairview Community Club as Amici Curiae on behalf of Plaintiffs and Appellants.

Law Offices of Stephan C. Volker, Stephen C. Volker, Joshua A. H. Harris and Shannon L. Chaney for
North Coast Rivers Alliance, Desert Protection Society, California Sportfishing Protection Alliance and
Klamath Forest Alliance as Amici Curiae on behalf of Plaintiffs and Appellants.

Richard E. Winnie, County Counsel, Brian E. Washington, Assistant County Counsel, and Manuel F.
Martinez, Associate County Counsel, for Defendants and Respondents.

Abdalah Law Offices, Richard K. Abdalah and Miriam H. Wen-Lebron for Real Parties in Interest and
Respondents.

Cox, Castle & Nicholson, Michael H. Zischke, Melanie Sengupta and Andrew B. Sabey for League of
California Cities and California State Association of Counties as Amici Curiae on behalf of Real Parties in
Interest and Respondents.

Brownstein Hyatt Farber Schreck and Beth Collins-Burgard for California Building Industry Association as
Amicus Curiae on behalf of Real Parties in Interest and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Sabrina V. Teller
Remy, Thomas, Moose & Manley
455 Capitol Mall, Suite 210
Sacramento, CA 95814
(916) 443-2745

Miriam H. Wen-Lebron
Abdalah Law Offices
10455 Torre Avenue
Cupertino, CA 95014
(408) 252-5211

Andrew B. Sabey
Cox, Castle & Nicholson
555 California Street, 10th Floor
San Francisco, CA 94104
(415) 392-4200