In an 85-page opinion filed March 25, and modified and certified for partial publication on April 23, 2021, the First District Court of Appeal affirmed the Napa County Superior Court’s judgment denying a writ petition challenging the County’s EIR and approvals for an expansion of Syar Industries, Inc.’s (Syar) aggregate mining operations at a quarry that has existed since the 1800s. Stop Syar Expansion v. County of Napa (1st Dist. 2021) 63 Cal.App.5th 444. The Court belatedly published about 25 pages of its lengthy opinion, which portions addressed basic CEQA principles, including standard of review and exhaustion principles, and the interplay of CEQA and general plan consistency issues.
Basic CEQA and Standard of Review Principles
The Court relied heavily on its own prior opinion in South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, 329-330 (my April 5, 2019 post on which can be found here) in setting out the general CEQA principles and standards governing its review in a case challenging an EIR’s content and analysis. These principles include that an EIR is presumed adequate and that the plaintiff bears the burden of proving otherwise; that courts generally have applied a procedural issues/factual issues dichotomy in determining whether an agency has committed a prejudicial abuse of discretion, according greater deference to the agency’s substantive factual determinations; that in reviewing for substantial evidence support, a court may not weigh conflicting evidence and cannot set aside an agency’s decision on the ground that an opposite conclusion would have been equally or more reasonable; that an EIR’s discussion of environmental impacts is adequate to serve its functions of informed agency decision making and public participation when it includes detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project; that the EIR’s sufficiency is judged by what is reasonably feasible, and the benchmark is not “perfection,” but “adequacy, completeness, and a good faith effort at full disclosure”; and that while there is no presumption that error is prejudicial, a prejudicial abuse of discretion will be found if the failure to include relevant information precludes informed decision making and public participation.
CEQA Exhaustion Principles
The requirement that a plaintiff must first exhaust administrative remedies by obtaining a final decision from the administrative tribunal with legal jurisdiction ensures that the public agency with presumed expertise has the “opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review” and thus has the “opportunity to act and to render litigation unnecessary.” (Quoting from North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623, my June 6, 2013 post on which can be found here.) Exhaustion is a jurisdictional prerequisite, not a matter of judicial discretion, and presents a question of law reviewed de novo by appellate courts.
To serve the exhaustion doctrine’s purposes the objections presented to the administrative tribunal must be sufficiently specific to allow the agency the opportunity to evaluate them and respond, and relatively bland and general references, or isolated and unelaborated comments, do not suffice; rather, the “exact issue” must be presented to the agency, and requiring anything less would allow litigants “to narrow, obscure, or even omit their arguments before the final administrative authority because they could possibly obtain a more favorable decision from a trial court.” (Quoting and citing id. at 623-624.)
Because the County of Napa by ordinance provides for an administrative appeal of its Planning Commission’s actions to its Board of Supervisors, the exhaustion inquiry in this case had two parts, i.e., (1) was CEQA’s statutory exhaustion/standing requirement under Public Resources Code § 21177 met? and (2) were all available local administrative appeal procedures exhausted? As held in Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 589-592, in what was then an issue of first impression, a party who satisfies section 21177’s express requirements by raising CEQA issues in the first hearing on a project, but who fails to raise the issues in an administrative appeal, fails to satisfy the second, common law exhaustion requirement and therefore cannot raise the issues in a court action. As confirmed by numerous cases, whether the common law exhaustion requirement has been satisfied in a given case depends on the particular procedures applicable to the public agency in question, and failure to properly raise issues in the manner required by the public agency’s procedures constitutes a fatal failure to exhaust on those issues, thus precluding a subsequent court action raising them. Accordingly, to show that it exhausted its CEQA issues, plaintiff SSE was required to demonstrate both that it satisfied section 21177 (by participating in the Planning Commission hearings during the public comment period or prior to issuance of the NOD) and that it fully exhausted the subsequent administrative appeal remedy to the Board as provided by the County’s Code.
The County’s administrative appeal procedures required a “notice of intent to appeal” to be filed and required fees to be paid within 10 working days of the Planning Commission decision being appealed. It also required that the appellant subsequently submit an “appeal packet” within 10 working days of filing the notice of intent, and that the packet identify “the specific factual or legal determination . . . being appealed, and the basis for such appeal” and it further provided that: “Any issue not raised by the appellant in the appeal packet shall be deemed waived.” Other County Code provisions reinforced that the “grounds of appeal and the factual or legal basis for such grounds must be expressly stated or the board shall deem such bases and grounds for appeal waived by the appellant.” Accordingly, the Board’s 109-page decision denying SSE’s two administrative appeals – one taken from the EIR certification and the other from the project/permit approval – expressly identified and addressed all (but only) the grounds raised in SSE’s appeal packets. Under these agency procedures, the Court of Appeal held that “to demonstrate that it exhausted its administrative remedies, SSE must show that it timely filed a notice of intent to appeal and timely submitted an appeal packet which specifically identified the grounds it raises in this court action.”
Further, to carry its burden to show exhaustion, it is insufficient to merely provide string-cites to the administrative record without explaining how each shows the agency was “fairly apprised” of the asserted CEQA noncompliance. (In the lengthy, unpublished portion of its opinion, the Court of Appeal went on to hold that appellant SSE failed to exhaust its administrative remedies on numerous issues, including its challenges to: the EIR’s use of a 5-year average/2009 actual production baseline; alleged insufficient mitigation for oak removal/loss of carbon sequestration impacts; alleged deficient water use baseline and mitigation; and water quality impact analysis. The Court also held that most of these challenges failed on their merits in any event. Because these portions of the Court’s opinion were not published, they will not be discussed further here.)
General Plan Consistency Arguments Held to be Substantively Meritless and “Not A CEQA Issue”
Appellant SSE failed to pursue a separate Code of Civil Procedure section 1085 ordinary mandate claim or cause of action against the County based on its arguments that the project approval was inconsistent with the County’s general plan. Accordingly, and because the County determined the project was consistent with its general plan, the trial court declined to consider the merits of SSE’s general plans consistency arguments.
The Court of Appeal, following the reasoning of The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, 893-894 (my August 31, 2017 post on which can be found here), held that the issue of a proposed project’s general plan consistency is “not a CEQA issue;” that while an EIR must discuss any inconsistencies with applicable general, specific and regional plans, it need not so analyze consistent projects; and that an agency’s general plan consistency determinations are reviewed by ordinary mandamus (not CEQA administrative mandate procedures) under a highly deferential standard under which the agency’s consistency determination “can be reversed only if it is based on evidence from which no reasonable person could have reached the same conclusion.” (Citations omitted.) The challenger’s burden is to show, based on all the record evidence, why the determination was unreasonable.
Here, SSE failed to meet its burden, and the Court rejected its argument that general plan “consistency” and “inconsistency” for CEQA purposes means something different than it does under the Planning and Zoning Law. Per the Court: “Try as SSE might to explain that it is not challenging the County’s substantive consistency determination, that appears to be exactly what [it] is doing, as it repeatedly maintains the EIR “failed to disclose inconsistencies” with the General Plan.” SSE cited no authority for its argument, and as Highway 68 pointed out, CEQA Guidelines section 15125(d)’s requirement for an EIR to discuss “inconsistencies” did not support it, either.
Even assuming the issue was cognizable under CEQA as an “informational” matter, the County addressed the project’s general plan consistency throughout the environmental review process, and through preparation of a general plan consistency analysis, and the Board addressed and rejected SSE’s various inconsistency claims in a portion of its decision quoted at length by the Court. That decision was within the County’s broad discretion to make on the record before it, and, per the Court, was not a matter for “the courts to micromanage.”
Conclusions and Implications
This case serves as a good reminder to CEQA practitioners of the important role of local administrative appeal procedures – separate and apart from the statutory standing requirements of Public Resources Code § 21177 – in defining the nature and requirements of the administrative remedies that must be exhausted under long-established common law to bring a court case (under CEQA or otherwise). The lesson for plaintiffs’ counsel is to carefully review and fully comply with local appeal procedures – a lesson also taught by another recent First District decision, Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, my April 13, 2021 post on which can be found here. This case further illustrates how courts have consistently rejected litigants’ attempts to transform general plan consistency into a CEQA issue, and thus avoid the great judicial deference afforded to local agencies’ consistency determinations under well-established land use law.
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