Parties Must Exhaust Administrative Remedies Before Challenging Even A CEQA Exemption

Tomlinson v. County of Alameda et al., S188161 (Supreme Court, June 14, 2012)

The California Supreme Court recently reinforced the CEQA requirement that a party must exhaust administrative remedies even where the public agency finds a project exempt from CEQA, if the agency (a) gave notice of the grounds for its exemption determination; and (b) held a public hearing on the project at which the public had the opportunity to object to the exemption determination, even though CEQA does not require the filing of a notice of determination for exemption determinations. This decision reversed the appellate court, and it represents a departure from the majority of prior appellate and superior court decisions on this issue.

In Tomlinson the Alameda County Board of Supervisors found that a proposed building project was categorically exempt from CEQA under CEQA Guidelines section 15332 as "infill," and approved the project. The petitioners had raised numerous objections to the proposed project at the County Board of Supervisors' hearing, but had not specifically stated that the reason the CEQA infill exemption did not apply was that the project was not located "within city limits." At issue before the Supreme Court was the CEQA provision that requires a petitioner to present "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" any concerns it wishes to raise in a later court challenge. Pub. Res. Code § 21177(a) (emphasis added). This "exhaustion" doctrine requires a party to raise its concerns about a proposed project before the project is approved by a public agency so the agency has an opportunity to address the concern; any objection not so raised is barred from later being brought in a judicial challenge.

A prior appellate case, Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 (decision here), had held that Public Resources Code 21177 applies only: "where (1) CEQA provides a public comment period, or (2) there is a...