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Fred Tomlinson et al v. County of Alameda et al

June 14, 2012

FRED TOMLINSON ET AL., PLAINTIFFS AND APPELLANTS,
v.
COUNTY OF ALAMEDA ET AL., DEFENDANTS AND RESPONDENTS; Y.T. WONG ET AL., REAL PARTIES IN INTEREST AND
RESPONDENTS.



Alameda County Ct.App. 1/5 A125471 Super. Ct. No. RG08396845

The opinion of the court was delivered by: Kennard, J.

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.

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.)*fn1 (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.)

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 Planning Department*fn2 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 served by required utilities and public services."*fn3 (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).)*fn4 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.

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 ...


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