By affirming the summary judgment against plaintiff Sea and Sage Audubon Society on arid ritualistic grounds the majority evade a legal issue of critical and growing importance in the field of public interest litigation. Because we should address plaintiff’s contention that it was excused from the administrative exhaustion requirement by Anaheim’s imposition of an arbitrary and excessive appeal fee, I must dissent.
It is the general rule, of course, that issues not raised in the trial court will not be heard for the first time on appeal. (Estate of Westerman (1968) 68 Cal.2d 267, 279 [66 Cal.Rptr. 29, 437 P.2d 517].) However, it is also well established that when the issue arises on undisputed facts and raises a question of law the reviewing court may allow the litigant to raise it initially on appeal. (Hale v. Morgan (1978) 22 Cal.3d 388, 394 [149 Cal.Rptr. 375, 584 P.2d 512]; Ward v. Taggart (1959) 51 Cal.2d 736, 742 [336 P.2d 534]; Wilson v. Lewis (1980) 106 Cal.App.3d 802, 805 [165 Cal.Rptr. 396]; Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167 [143 Cal.Rptr. 633].) Here Sea and Sage raises the legal question whether, on undisputed facts as to the identity of the parties and the nature of the *423administrative remedies available, it was excused from the exhaustion requirement.
Moreover, “Appellate courts are more inclined to consider . . . tardily raised legal issues where the public interest or public policy is involved.” (Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 5 [97 Cal.Rptr. 431]; accord, United California Bank v. Bottler (1971) 16 Cal.App.3d 610, 616 [94 Cal.Rptr. 227].) In United California Bank, for example, the court disposed of an appeal from a declaratory judgment concerning certain interests in an inter vivos trust on a theory presented for the first time on appeal, i.e., on the ground that certain dispositions violated the rule against perpetuities: “It does not appear that the perpetuities problem was ever brought to the attention of trial court. Appellant raises it for the first time in her brief in this court. Since the rule is based upon public policy rather than private convenience, we cannot invoke any doctrine of waiver, but must face the issue and apply the limitation which the law imposes.” (Id. at p. 616.) Surely the issue Sea and Sage asks us to address here—whether Anaheim’s appeal fee ordinance impermissibly burdens the pursuit of administrative remedies—is of public interest and raises important policy questions concerning access to the administrative appeal process.
Ultimately it is a matter of the reviewing court’s discretion whether a litigant will be permitted to raise a new theory for the first time on appeal. (Solorza v. Park Water Co. (1948) 86 Cal.App.2d 653, 662 [195 P.2d 523]; Isthmian Lines, Inc. v. Schirmer Stevedoring Co. (1967) 255 Cal.App.2d 607, 610 [63 Cal.Rptr. 458]; Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167 [143 Cal.Rptr. 633].) Because in this case it is the very access to the administrative review process which is at issue, I would allow Sea and Sage to advance the contention that it was excused as a matter of law from the exhaustion requirement by the city’s imposition of the appeal fee in violation of relevant statutory limitations. I turn to the merits of this contention.
Preliminarily, I would agree with the majority (part III) that plaintiff is not excused from the exhaustion requirement merely because of its status as a nonprofit public interest group. Although this environmental organization is asserting public rather than private rights, Environmental Law Fund, Inc. v. Town of Corte Madera (1975) 49 Cal.App.3d 105 [122 Cal.Rptr. 282], on which plaintiff relies, is distinguishable: there the court specifically limited its holding to cases in which the person or group challenging an administrative determination was not itself a “party” to the administrative proceedings. (Id. at p. 113.) The court emphasized that the organizations challenging the Corte Madera Planning Commission’s actions had not participated in, nor even been given notice of, the commission’s *424proceedings. Here, although technically not a party to the proceedings before the Anaheim Planning Commission, plaintiff did have notice of the proposed actions and actively participated at every stage of the hearing process. City council members explicitly reminded plaintiff’s representative of the available appeal to the city council. We therefore could not excuse Sea and Sage’s failure to exhaust administrative remedies on the basis of Environmental Law Fund alone.
However, plaintiff also maintains that it was excused from exhausting the administrative remedy of appealing the planning commission’s decision to the city council because the $607 appeal fee imposed pursuant to local rule unlawfully burdened its pursuit of that remedy, and because it would have been futile to file an appeal without the requisite fee. With this I agree.
The relevant statutory provisions comprise the Subdivision Map Act. (Gov. Code, § 66410 et seq.) Originally, only subdividers and tenants in certain residential projects could appeal from adverse administrative decisions concerning tract maps. (Gov. Code, § 66452.5, subds. (a) and (b).) To remedy this inequity the act was amended in 1974 to extend the right to appeal to “interested persons” aggrieved. Subdivision (d) of section 66452.5 now provides: “Where local ordinance so provides, any interested person adversely affected by a decision of the advisory agency or appeal board may file a complaint with the governing body concerning any decision of the advisory agency or appeal board.” (Italics added.)
Section 66451.2, as enacted in 1974, provided that local agencies, such as planning commissions, could levy administrative fees: “The local agency may establish reasonable fees for the processing of tentative, final and parcel maps and for other procedures required or authorized by this division or local ordinance.” (Italics added.) (Stats. 1974, ch. 1536, § 4, pp. 3473-3474.) In 1981 this provision was amended to add the following: “but the fees shall not exceed the amount reasonably required by such agency to administer the provisions of this division.” (Stats. 1981, ch. 914, § 6, p. 3459.) The majority trivialize this amendment: they suggest that the Legislature intended by the additional language merely to “flesh out” the pre1981 definition of “reasonableness.” To the contrary, it bears emphasis that the 1981 amendment was intended to place ceilings on administrative fee schedules, to prevent local agencies and governments from diverting fees to general revenue purposes. I quote from the Legislative Counsel’s Digest:
“(1) Existing law authorizes local agencies to charge fees for sewer connections, water connections, zoning variances, zoning changes, use permits, building inspections, building permits, planning services, and for the pro*425cessing of maps and administering other provisions of the Subdivision Map Act.
“Existing law does not expressly prescribe that such fees be limited so as not to exceed the estimated amount reasonably required to provide the services for which the fees are charged.
“This bill would require that these fees be limited in such a manner unless the amount of the fee charged in excess of the estimated reasonable cost of providing the services or materials is submitted to and approved by a popular vote of % of those electors voting on the issue. It would make the limitation on these fees applicable to charter cities. This bill would require a local agency to hold a public meeting, as specified, prior to levying a new fee or service charge, or prior to approving an increase in an existing fee or service charge, and would require that the action be taken by ordinance or resolution.” (Legis. Counsel’s Dig. of Sen. Bill No. 1005, 4 Stats. 1981, ch. 914, p. 276, italics added.) Moreover, section 1 of the bill stated: “The Legislature finds and declares that as a matter of statewide concern it is necessary for the state to limit the amount of various fees charged by local agencies, including, but not limited to, charter cities, in order to carry out the intent and purpose of Article XIII A of the California Constitution.” (Stats. 1981, ch. 914, § 1, p. 3456.) Thus in amending section 66451.2 the Legislature was clearly responding to the potential problem of excessive fees by mandating that they be reasonably related to the costs of the services for which they are charged.
This interpretation is further supported by the language of section 54990 of the act, also part of the 1981 amendment, which reads: “Notwithstanding any other provision of law, when a county or city, including, but not limited to, a charter city or city and county, district, or other public corporation or agency, charges fees for zoning variances, zoning changes, use permits, building inspections, building permits, the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7, or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 or under any other authority, such fees shall not exceed the estimated reasonable cost of providing the service for which the fee is charged, unless a question regarding the amount of the fee charged in excess of the estimated reasonable cost of providing the services or materials is submitted to, and approved by, a popular vote of two-thirds of those electors voting on the issue.” (Italics added.)
Thus, the Subdivision Map Act grants public interest groups such as Sea and Sage the right to appeal from administrative decisions and permits local *426agencies to levy fees to defray the expenses of the appeal process. The question remains whether the Anaheim appeal fee structure at issue here is reasonably related to the cost of administering its subdivision appeal process.
The procedure under attack is set out in resolution No. 73R-210, adopted in 1973 by the Anaheim City Council. Section 2 governs developers and provides that “Upon the filing of a tentative map with the City for approval, applicant shall pay a fee of Two Hundred and Fifty Dollars ($250.00), plus One Dollar ($1.00) per lot to the City of Anaheim.” In turn, section 5 prescribes the fee for appeals from the decisions of the city’s planning commission; “A fee of one-half of the original zoning and land use fee shall be paid upon the filing of an appeal requesting the City Council to review the action taken by the Planning Commission.” Pursuant to this scheme Sea and Sage was assessed an appeal fee of $607.
In my view this appeal fee formula is both arbitrary and unreasonable as a matter of law. By no stretch of legal imagination can the requirement that a party seeking to appeal the approval of a development pay one-half the original zoning fee—which is itself calculated in terms of the number of tracts and lots—be said to be “reasonably related” to the cost of administering the appeal process. The majority suggest that some reasonableness adheres in the fact that the appeal fee “varies with the size of the proposed development.” In fact, the scheme does not gear the fee to the physical size of the challenged project. Because the zoning fee itself, on which the appeal fee is directly based, is calculated in terms of numbers of tracts and lots, the same appeal fee could be levied if different-sized projects were at issue. Nor are the fees a function of the number of maps involved.
An illustration may be helpful here. Under the Anaheim scheme an appeal fee of $500 would be based on a zoning fee of $1,000, which itself could have been levied on a number of different projects, e.g., a project comprising 3 tract maps (at $250 each, a total of $750) and containing a total of 250 lots (at $1 each, a total of $250) would require a zoning fee of $1,000, and hence an appeal fee of $500. However, the same zoning and appeal fees would be assessed for a project composed of 2 tracts of the same size (for a total of $500) divided into 500 smaller lots (for a total of $500), or for a project contained in a single tract (for $250) divided into 750 lots of whatever size (for a total of $750). Each very different project would require a $1,000 zoning fee from its developer and a $500 appeal fee from its “interested” opponent. Thus whether in fact the cost of processing a zoning appeal varies with the size of the property, with the number of maps to be reviewed, or with the nature of the development proposed, Anaheim’s one-*427half zoning fee scheme is not necessarily related to any of these variables and is therefore patently arbitrary.
The appeal fee at issue here is also unreasonable in light of section 66452.5, subdivision (d), of the Subdivision Map Act and Anaheim’s corresponding local rule (Anaheim City Code, § 17.08.100.30), both of which permit the summary rejection of an appeal by an “interested person.” Although subdivisions (a) and (b) of the act guarantee that the subdivider, or a tenant in a condominium conversion, or the agency itself “shall” be afforded a hearing, subdivision (d), governing appeals by “interested persons,” merely provides that “Upon the filing of the complaint, the governing body may set the matter for hearing. . . . Such hearing may be a public hearing for which notice shall be given in the time and manner provided.” Thus the City of Anaheim could collect an appeal fee, dispose of the appeal summarily at little or no expense, and simply use the fee for other municipal expenditures.
Respondents argue nevertheless that the $607 fee—which they repeatedly characterize as “nominal”—is necessary in this case to defray the expenses of “processing the appeal, and noticing and conducting a public hearing, if one were granted. ” This contention, I have tried to explain, is both factually and legally unpersuasive. It is simply unreasonable and unfair to require a nonprofit group challenging a land use decision on environmental or other public interest grounds to pay what for it is a substantial sum, when it then risks that its complaint will be disposed of by letter and its fee pocketed by the agency or municipality. As a practical matter, which appears to be of callous unconcern to the majority, Anaheim’s appeal fee requirement is likely to deny public interest groups and other “interested persons” the pursuit of administrative remedies guaranteed them by the Subdivision Map Act. We should not permit local governing bodies to insulate major land use decisions from public scrutiny by pricing statutory appellate remedies beyond the reach of interested members of the community.
For these reasons, I agree with Sea and Sage that section 5 of Anaheim Resolution No. 73R-210 violates section 66451.2 of the Subdivision Map Act. The requirement of an appeal fee equal to one-half the developer’s assessed zoning fee imposes an arbitrary and unreasonable barrier to the pursuit of administrative remedies by “interested persons.” Because its appeal from the planning commission’s decision was impermissibly conditioned on payment of the $607 fee, Sea and Sage should be excused from the requirement that it exhaust that administrative remedy.
It is ordinarily preferred that persons aggrieved by local agency determinations do their best to comply fully with the prescribed course of ad*428ministrative review before challenging those determinations in court. Here plaintiff could have presented a timely written appeal to the city council, even if it could not afford to include the assessed appeal fee. However, I am persuaded from my examination of the record that such an effort would have been futile. (Eldridge v. City of Palo Alto (1976) 57 Cal.App.3d 613, 633 [129 Cal.Rptr. 575]; Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834 [112 Cal.Rptr. 761].) It is obvious from the minutes of its October 14 meeting that the city council had no intention of considering any appeal Sea and Sage might have filed without the exorbitant fee. When asked by a representative whether the council might waive the fee requirement in its case, the mayor and one other councilman stated that although they had no desire to deprive Sea and Sage of its right to appeal, they could not waive the fee. Moreover, it was not only the city council’s expressed intention to disregard an appeal filed without the substantial appeal fee, but also its legal obligation, pursuant to resolution No. 73R-210, to insist that appeals from planning commission decisions concerning tract maps be thus perfected. The city council therefore would not have accepted a timely Sea and Sage appeal unaccompanied by the $607 fee. I would not condition the availability of judicial review on the pursuit of an idle gesture.
In addition, Sea and Sage repeatedly made its opposition known to the city council by appearing and testifying at hearings and meetings. Under the circumstances, its failure to.file a formal notice of appeal did not prejudice the City of Anaheim or Texaco-Anaheim Hills, Inc. Because Anaheim Resolution No. 73R-210 impermissibly burdened and effectively nullified Sea and Sage’s statutory right to appeal, it should have been excused from the requirement that it exhaust its administrative remedies in this case.
The majority are clearly in error in their antagonism to the efforts of a nonprofit public interest group that merely seeks an opportunity to have its appeal and an ultimate trial heard on the merits. I would reverse the summary judgment.
Bird, C. J., and Reynoso, J., concurred.
Appellants’ petition for a rehearing was denied October 6, 1983, and the judgment is modified to read as printed above.