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On remand from the California Supreme Court, the First District Court of Appeal again considered the case of Tomlinson v. County of Alameda (Case No. A125471) in light of the Supreme Court’s holding (54 Cal.4th 281) that the exhaustion of administrative remedies provision as set forth in Public Resources Code section 21177, subdivision (e), applies to a public agency’s decision that a project is categorically exempt under CEQA.  The Supreme Court’s ruling overturned the Court of Appeal’s earlier decision (188 Cal.App.4th 1406) that the exhaustion requirement does not apply to categorical exemptions and remanded the matter to the Court of Appeal.  On remand, the Court of Appeal considered the Tomlinsons’ contentions that their objections at the public hearings were sufficient to satisfy the exhaustion requirement and that the public agency misled them.

In 2008, Alameda County approved a subdivision development, finding it categorically exempt from CEQA under the “infill exemption.”  (CEQA Guidelines, § 15332.)  Under this section, a project is categorically exempt as infill development if it is consistent with the applicable general plan and zoning designations; occurs within city limits on a site no more than five acres substantially surrounded by urban uses; has no value as habitat for endangered species; would not result in significant effects to traffic, noise, air quality or water quality, and can be adequately served by utilities and public services.  On appeal, the Tomlinsons first argued the residential subdivision would not comply with the zoning ordinance and would not be served by existing utilities.  On this issue, the Court found the Tomlinsons failed to set forth all material evidence and thus waived their argument.  The Tomlinsons next asserted that the subdivision was located in unincorporated Alameda County and was not within the “city limits” as required by the infill exemption.  The Court concluded that the Tomlinsons failed to exhaust their administrative remedies and thus waived this claim as well.  According to the Court, neither the Tomlinsons nor other local residents specifically challenged the County’s reliance on the exemption on the ground that the project would not occur “within the city limits.”  The Court found the Tomlinsons’ arguments to “lack persuasive force” and thus concluded they were barred from asserting their “within the city limits” argument.

The Court did, however, agree with one of the Tomlinsons’ two remaining contentions that the County failed to consider the applicable exceptions to the infill exemption.  CEQA Guidelines, section 15300.2, precludes an agency from relying on a categorical exemption if there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances (unusual circumstances exemption) or if the cumulative impact of successive projects of the same type in the same place, over time is significant (cumulative impact exemption).  To the extent the Tomlinsons argued the County erred in failing to apply the unusual circumstances exception, the Court held the Tomlinsons failed to provide substantial evidence in support of their claims and “provide[d] no analysis demonstrating that the alleged circumstances differ from the circumstances of the projects generally covered by the in-fill development exemption.”  Indeed, the Court noted that “traffic congestion, inadequate parking, and the obstruction of viewsheds are precisely the circumstances one would expect to see in a ‘proposed development that occurs within city limits on a project site [that is] substantially surrounded by urban uses.’”

The Court also rejected the Tomlinsons’ assertion that the County tried to “mitigate its way into the exemption”.  On this issue, the Tomlinsons pointed to nothing in the record that would alert the Board that it could not impose conditions to mitigate the project’s impact and thus failed to exhaust their administrative remedies.

However, the Court found that the County’s failure to consider the cumulative impact exception to the infill exemption constituted a prejudicial abuse of discretion.  Although the court noted that an agency’s exemption determination generally supports an implication that the exceptions to the exemption do not apply, “the record in this case affirmatively demonstrates that the Board did not consider the cumulative impact [exception].”  The Court noted that, in testimony at the public hearings, neighbors expressed concern regarding the cumulative impact of increased development in the area over the last several decades and noted concern over traffic impacts and insufficient street width, parking problems and a concern that the project may include rental properties with “multi-family occupancy” that would each need to park “five to seven cars.”   In sum, the “evidence paints a picture of a semi-rural area that has had concerns about … increased development…”

In light of the concerns as expressed during the public hearing, the Court held that the Board was required to consider the cumulative impact exception to the infill exemption.  In so holding, however, the Court “confine[d] [its] analysis to whether the Board was required to decide this question and express[ed] no opinion as to whether the cumulative impact exception applies in this case.”

Four years after initial project approval, the matter has now been remanded back to the trial court with instructions to issue a writ of mandate directing the County to set aside its project approval and to reconsider approval of the subdivision, specifically, by determining whether the cumulative impact exception renders the infill exemption inapplicable.

Written By: Tina Thomas and Ashle Crocker
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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