Connect with CP&DR

facebook twitter

Follow us on Facebook and Twitter

Local CEQA Appeals Not Exempt From Filing Fees

Upholding a 27-year-old California Supreme Court determination, the Second District Court of Appeal has ruled that local agencies may impose a fee for the filing of an administrative appeal of a California Environmental Quality Act (CEQA) decision. In the case at hand, the City of Glendora Planning Commission adopted an addendum to a negative declaration, stating that the project could cause no significant impacts, and approved a 125-bed assisted living facility on February 12, 2008. Glendora resident and project opponent Erica Landmann-Johnsey wanted to appeal the commission's decision to approve the project without an environmental impact report to City Council, but she was required to pay a $2,000 appeal fee. She went ahead with her appeal and paid the fee under protest. The City Council subsequently denied her appeal. In response, Landmann-Johnsey and the organization Friends of Glendora filed a writ of mandate alleging, among other things, that the city violated CEQA when it assessed the $2,000 fee. The city demurred on the ground that the complaint was filed outside the 120-day statute of limitations from the date the City Council instituted the fee for such appeals; the fee, imposed for a variety of appeals, began in 2004. The city also argued 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. The trial court ruled for the city, and the Court of Appeal affirmed. In conducting its analysis, the Court of Appeal reviewed Sea & Sage Audubon. In that case, the petitioners appealed to the Anaheim City Council a city Planning Commission decision to certify an environmental impact report and approve subdivision maps for a community development project. The petitioners contended the EIR was inadequate. The petitioners, however, did not pay an appeal fee to the city, and the city rejected the appeal (the opinion is conspicuously vague on whether the reject was due directly to the absence or the lateness of the fee � or both). The petitioners filed a writ of mandamus to compel the city to vacate the approval of the project. The city moved for summary judgment, arguing that petitioners never officially filed an appeal with the city and therefore failed to exhaust their administrative remedies. After losing at the trial court, the petitioners appealed on the ground that the city's fee for filing the administrative appeal was invalid. The California Supreme Court rejected that argument, 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 an attempt to distinguish her case from the Sea & Sage Audubon case, Landmann-Johnsey 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. Thus, she argued, the city may not impose a fee for administrative CEQA-based appeals such as hers. The Second District rejected this interpretation, instead finding 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 a section of CEQA (Public Resources Code � 21083.1) did not prohibit agencies from imposing reasonable fees for filing administrative appeals of decisions. The law must be construed in a practical and common sense way, the court concluded. The Case:

Friends of Glendora v. City of Glendora, No. B215114, 2010 DJDAR 2010 DJDAR 3134. Filed March 1, 2010. The Lawyers: For Friends of Glendora: Cory J. Briggs, (909) 949-7115. For the city: D. Wayne Leech, (626) 443-0061.

--Katherine J. Hart