The California Supreme Court will review a case in which Alameda County and a housing developer argue that a California Environmental Quality Act lawsuit filed by project opponents should have been dismissed because the opponents did not raise their objection during the administrative process.
In Tomlinson v. County of Alameda (see CP&DR Legal Digest Vol. 25, No. 14, July 2010), the First District Court of Appeal ruled that the typical requirement for the exhaustion of administrative remedies did not apply in a case involving a categorical CEQA exemption. Alameda County had approved a 12-unit housing subdivision after determining it qualified for a categorical CEQA exemption based on the project's urban infill nature. The appellate court overturned the exemption, ruling it could apply only when land lies within an incorporated city. The two-acre parcel in this case is in unincorporated Alameda County.
The state Supreme Court did not accept the case on the specific merits but, rather, on the question of exhaustion of administrative remedies. Although the project opponents had participated in a public review process and even filed an appeal with the Board of Supervisors, they did not question the infill exemption before filing their lawsuit. The question for the state high court is whether Public Resource Code § 21177 required the opponents to raise the issue before filing a lawsuit challenging the county's decision to categorically exempt the project from CEQA review.
The First District's decision in Tomlinson conflicted with a different First District division's decision in Hines v. California Coastal Commission, 186 Cal.App.4th 830. In the latter case, the court ruled that project opponents challenging a CEQA exemption had to exhaust their administrative remedies when there was an opportunity to do so. Much like the proposed Alameda County subdivision, the project in question in Hines was the subject of several public hearings.
The case on review is Tomlinson v. County of Alameda, No. S188161.