County Erred By Finding Development Was Exempt From The California Environmental Quality Act Due To An In-Fill Exemption Where Development Was Not Within The Boundaries Of A Municipality

November 22, 2010 | Bulletin No. 953364.1

In Tomlinson v. County of Alameda, (--- Cal.Rptr.3d ----, Cal.App. 1 Dist., October 06, 2010), a court of appeal considered whether a county erred in finding that a proposed subdivision development was exempt from the California Environmental Quality Act (“CEQA”) under the categorical exemption for in-fill development where the development would be located in an unincorporated part of the county. The court held the county erred in finding the project is exempt from CEQA because it was not located within the boundaries of a municipality.

Update

For a discussion of the California Supreme Court ruling in this case, see our Legal Alert entitled, "UPDATE: Exhaustion-Of-Administrative-Remedies Requirement Applies If There Is A Public Hearing Before An Agency Determines A Project Is Categorically Exempt From CEQA", June 21, 2012.

Facts

A developer filed an application with the Planning Department of the County of Alameda ("County") to merge two parcels of land within the county, subdivide the land, and develop single-family homes. The property is located in an unincorporated area of the county. County's Planning Commission ("Commission") approved the proposed subdivision and found that it is exempt from CEQA on the ground that it is "in-fill development" because it would be built in an established urban area and it would not have a significant impact on noise, air, traffic, or water quality.

Fred and D'Arcy Tomlinson appealed the Commission's decision to the Board of Supervisors ("Board") contending that the proposed subdivision was not exempt from CEQA. The Board denied the appeal. The Tomlinsons filed a petition for writ of mandate in which they asked the court to set aside County's decision to approve the subdivision. The court denied the Tomlinsons' petition.

Decision

The court of appeal reversed the decision of the trial court. The court of appeal found the proposed subdivision did not qualify as an “in-fill development” and therefore, County erred in finding the project exempt on this basis.

CEQA regulations provide that a project is categorically exempt from the requirements of CEQA as an “in-fill development” if (1) the project is consistent with the general plan and zoning designations and regulations; (2) the “proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses;” (3) the project site is not a habitat for endangered, threatened, or rare species; (4) the approval of the proposed project would not result in a significant effect to air or water quality, traffic, or noise; and (5) the site for the project “can be adequately served by all required utilities and public services.” The Tomlinsons contended that because the proposed subdivision project was not “within city limits,” the exemption did not apply. The court of appeal agreed with the Tomlinsons.

It was undisputed that the proposed project site is located in unincorporated Alameda County. County argued that the court should interpret the “within city limits” requirement broadly to include an “established urban area.” The court refused to take this approach and concluded that the project did not qualify for an exemption because it was not within the boundaries of a municipality.

The court also rejected County’s argument that the Tomlinsons could not raise the “within city limits” argument on appeal because they failed to exhaust their administrative remedies on this issue. CEQA, at Public Resources Code section 21177, provides that no action or proceeding can be brought challenging a public agency’s noncompliance with CEQA “unless the alleged grounds for noncompliance . . . were presented to the public agency orally or in writing by any person during the public comment period.” The court held that section 21177 does not apply here because “CEQA does not provide for a public comment period before an agency makes an exemption finding.” The only prerequisite to an action that challenges a determination regarding an exemption is that the challenge must be brought within 180 days from the date the agency made the final decision. Therefore, the Tomlinsons were not precluded from asserting that the exemption should not have been granted on the ground that the project was not within the city limits.

The appellate court instructed the trial court to issue a writ of mandate that directs County to set aside the decision to approve the proposed subdivision and to comply with CEQA.

Questions

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Mona G. Ebrahimi or Daniel J. O'Hanlon | 916.321.4500