Exhaustion of Administrative Remedies

Continuing a trend toward stricter application of the administrative exhaustion doctrine, an appellate court held that plaintiffs could not bring a takings claims against the Coastal Commission because they did not “present the exact issue” during the administrative proceedings. Greene v. California Coastal Commission, 40 Cal.App.5th 1227 (2019).

Plaintiffs’ beachfront duplex bordered the designated

The California Supreme Court has issued a landmark decision holding that the exhaustion doctrine – which requires parties to raise their claims at the administrative level before litigating them in court — applies to challenges to an agency decision that a project is exempt from CEQA.  Overturning a 15-year-old precedent, the court ruled that if the decision-making agency holds a hearing on the project, prospective litigants must apprise the agency of the relevant issues before they can bring them to court.  Tomlinson v. County of Alameda, Case No. S188161, 2012 WL 2145906 (Cal. June 14, 2012)

The issue exhaustion rule has been murky ever since a 1997 case, Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster, 52 Cal. App. 4th 1165, stated that the exhaustion requirement did not apply to a challenge to a decision that a project was exempt from CEQA.  More recently, there have been conflicting opinions—the court of appeal’s decision this case, which sided with Azusa, and a two-year-old decision holding that exhaustion was required (Hines v. California Coastal Com., 186 Cal. App. 4th 830 (2010)).

The Supreme Court made the issue seem easy.  The court explained that CEQA expressly states that a proposed project can be challenged 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. Res. Code 21177(a))  The court acknowledged that when an agency determines a project is exempt from CEQA, there is no public comment period, so that aspect of this test does not apply.  But if the public agency holds a hearing on the project before deciding it is exempt from CEQA, the court ruled the statutory requirement applies.  It does not matter whether the hearing was required by law.  Nor does it matter whether the agency ultimately filed a notice of determination.
Continue Reading Speak Now or Forever Hold Your Peace — Issue Exhaustion Applies to CEQA Exemptions.