In Arcadians for Environmental Preservation v. City of Arcadia (2023) 88 Cal.App.5th 418, the Second Appellate District addressed a CEQA challenge to a categorical exemption (Cal. Code Regs. tit. § 15301) (“Section 15301”) that had been applied to the construction of a large single-family home in an established residential neighborhood.  The CEQA challenge focused on the City’s use of a Section 15301 categorical exemption for a significant remodel to a single-family home.  In 2018, the applicant (“Wu”) applied for design review approval that was rejected by the architectural review board.  Wu redesigned the home, and reapplied 2019.  Again, Wu’s application was denied by the review board.  Wu filed a timely appeal to the Planning Commission in 2020. Staff recommended approval, based on four changes to address neighborhood compatibility. The staff recommended the use of a categorical exemption.  The Planning Commission conducted a public hearing, and a neighbor, Dr. Huey, complained of the anticipated loss of privacy. Following the hearing, the Planning Commission approved the request, and found that the project was exempt under Section 15301 for additions to existing facilities. Dr. Huey appealed to the City Council. The notice of public hearing for the City Council included a notice of an exemption under Section 15301, as did the meeting agenda. Following an August 4, 2020, hearing, the City Council approved the project.  Dr. Huey then formed an environmental group, and filed for a writ of mandate arguing CEQA and land use grounds on September 9. On September 25, 2020, the City filed a notice of exemption, however relying on a different provision of Section 15301. Trial on the writ was conducted on February 2, 2022, and the trial court rejected the Section 15301 challenge on the basis of failure to exhaust administrative remedies. The trial court also denied relief upon the remaining claims. The petitioner appealed.  The planning and zoning claims were abandoned on appeal.

Failure to Exhaust

As part of the City Council deliberations, Dr. Huey provided comments on potential impacts and the need for the City to comply with CEQA.  The appellate court concluded that the commentary was insufficient to preserve a challenge to the City’s Section 15301 determination.  The exhaustion doctrine is design to allow the agency the chance to understand the objection and to remedy any potential error.  The doctrine requires that the exact issue be raised.  The appellate court concluded that the generalized objections, including the demand that the City prepare an EIR,  were insufficient.  The appellant then argued that there was an implicit argument challenging the Section 15301 determination as Dr. Huey had submitted written comments addressing  a number of potential CEQA impacts.  The appellate court considered these comments as too general in character and failed to fairly apprise the City as to the Section 15301 objection.  In contrast, the appellate court concluded that Dr. Huey’s planning and zoning law objections were “clear, comprehensive and unequivocal.”

Waiver of the Exhaustion Requirement

Appellant also argued that the exhaustion requirement was waived as a result of the content of the public hearing notice.  But the appellant court found that the public hearing notices referred to Section 15301, which was sufficient.  The court noted that although there were discrepancies in the specifics of the exemptions, this was not a reversible error as the examples listed in Section 15301 were nonexclusive.  As nobody had objected to the Section 15301 exemption, the variations in descriptions was not prejudicial.

An Exception to the Exemption

Appellant also complained that the City failed to analyze if an exception to exemption nullified the use of the exception.  The appellate court found that the City’s finding regarding the Section 15301 exemption served as an implied finding that no exceptions nullified the use of the exemption.  While the lead agency must consider the evidence in its files which would foreclose use of an exemption, no formal finding is procedurally required.  (Comment: in the face of adverse information the agency should make that finding with supporting analysis.)

Cumulative Effects

Dr. Huey commented that the city should conduct a cumulative impact analysis.  Acknowledging that the comments by themselves may have lacked sufficient specificity to satisfy the exhaustion, the court addressed the merits of the argument.  Noting that the burden of producing relevant evidence fell on the project opponent.  While the opponent identified other similar projects nearby, the opponent did not identify evidence of impacts from these projects part of the cumulative condition.  His argument that the cumulative projects would have cumulative effects was simply speculation.

William W. Abbott is Of Counsel with Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.