By: Katherine J. Hart

As determined by the California Supreme Court 27 years ago, local agencies may impose a fee for the filing of an appeal of a CEQA decision so long as that fee is reasonable.

In the case at hand, the planning commission of the City of Glendora adopted an addendum to a negative declaration (“Addendum”) and approved a project on February 12, 2008. Petitioner Erica Landmann-Johnsey (“Petitioner”) wanted to appeal the CEQA decision to the city council, but in order to do so, was required to pay a $2,000 appeal fee. Petitioner filed her appeal and paid the fee under protest.

Petitioner’s appeal was denied and she filed a writ of mandate alleging, among other things, the city violated CEQA when it assessed a $2,000 fee to appeal a decision of the planning commission to approve a project pursuant to CEQA. The city demurred on the grounds the complaint was filed outside the 120-day statute of limitations from the date the city council adopted the fee, and further that charging such a fee was in compliance with CEQA pursuant to the California Supreme Court’s decision in Sea & Sage Audubon Society, Inc. v. Planning Commission (1983) 34 Cal.3d 412 (“Sea & Sage Audubon”). The trial court sustained the city’s demurrer and the court of appeal affirmed.

In conducting its analysis, the court of appeal reviewed the facts of the Sea & Sage Audubon case. In that case, petitioners appealed to the city council of the City of Anaheim a planning commission decision to certify an EIR as complete and approve tentative maps for a planned community development project on the grounds the EIR was inadequate. Petitioners did not pay any appeal fee to the city, and the city rejected the appeal. The petitioners filed a writ of mandamus to compel the city to vacate the approval of the project. The city moved for summary judgment on the grounds petitioners failed to exhaust their administrative remedies; the trial court granted the city’s motion. Petitioners appealed on the ground the city’s fee for filing the administrative appeal was invalid. The California Supreme Court rejected petitioners’ claims citing Government Code § 66452.5, which authorizes a city to permit interested persons to appeal a decision of a planning commission, and Government Code § 66451.2, which authorizes cities to establish reasonable fees for procedures associated with the processing of maps and other local ordinances.

In a clever attempt to distinguish the Sea & Sage Audubon case, petitioner argued that Public Resources Code § 21151, subdivision (c), which creates the right to appeal a lead agency’s CEQA document does not indicate a fee is required to make such an appeal, and as such, no appeal fee can be imposed by local agencies for administrative appeals based on CEQA. The court of appeal rejected Petitioner’s on the grounds that the California Supreme Court did not require a specific statutory authorization under CEQA for the appeal of a planning commission decision to the city council. The court of appeal also found that Public Resources Code § 21083.1 did not apply to prohibit agencies from adopting and imposing reasonable fees for filing administrative appeals of decisions contending CEQA must be construed in a practical and common sense way. 

Katherine J. Hart is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.