By William W. Abbott

When it comes to administrative appeals of land use decisions, state law largely delegates to cities and counties the choice of being flexible or rigid on administrative appeals (e.g. tentative subdivision map approvals, conditional use permits, CEQA documents). Most cities and counties opt for a de novo review by the appellate body. This means that the appellate body effectively starts over on the decision, and it is empowered to make any decision it deems to be appropriate under the circumstances. As illustrated by the recent decision of Citizens for Open Government v. City of Lodi (Browman Development Co., real party in interest) 2006 Cal. App. LEXIS 1764, de novo review may permit a project opponent to challenge in court the adequacy of the CEQA document, even though the appeal to the city council was on non-CEQA grounds.

Once again, the center of the land use dispute was a proposed Wal-Mart. It was opposed by two citizen groups, Lodi First and Citizens for Open Government (“Citizens”). Both provided comments in opposition to the EIR and project before the Planning Commission. Lodi First filed a timely appeal seeking a de novo review by the City Council, arguing that the project violated the zoning code, was inconsistent with the general plan, and that the EIR violated CEQA. The City appeal rules provided for a de novo review by the City Council, permitting the council to sustain, amend or overrule the commission action. In conjunction with the City Council hearing, Citizens launched a new attack on the sufficiency of the EIR. After the close of the hearing, the Council acted to certify the EIR, and granted approval of the entitlements. Both Lodi First and Citizens filed suit. The City and the developer successfully moved to dismiss Citizen’s lawsuit on the basis that Citizens had failed to appeal the Planning Commission’s certification of the EIR. This dismissal was the subject of an appeal by Citizens.

The appellate court reviewed the City’s administrative appeal provisions. Similar to many other local government rules, the appeal rules were broadly written, and the appellate court failed to find any specific rules of limitation on the scope or nature of city council review of an appeal of the CUP. Thus, once there was a timely appeal to the City Council by Lodi First, Citizens was free to continue to pursue its objections to the EIR before the City Council, and subsequently in court.

Had the City adopted more precise administrative appeal rules, the outcome may have been different. The same court of appeal had reached a contrary result in Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, wherein Placer County rules were very specific about the nature and scope of the appellate review by the Board of Supervisors, and the failure to check the CEQA box on the appeal form precluded a later legal challenge on that basis.

It is this author’s experience that as a result of land use codes (zoning, Subdivision Map Act, CEQA) being adopted at different times, drafted by different individuals, that there is often a lack of internal consistency and clarity on the nature of administrative appeals. As this case illustrates, cities and counties would do well to consider the adoption of a consolidated set of rules mindful that in the absence of a clearly stated limitation, that all issues are likely to be fair game during a de novo appeal.

Bill Abbott is a partner with Abbott & Kindermann, LLP.   For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.