CEQA Infill Exemption Applies Only to Incorporated Cities

 

The First District Court of Appeal determined that the California Environmental Quality Act exemption for infill development applies only to projects within the limits of an incorporated city.

Abiding strictly by rhetoric in the CEQA guidelines referring to "city limits" rather than a broader conception of urbanized area, the court rejected Alameda County's use of the infill exemption for a small housing project in an area bordering Hayward that is urbanized but not incorporated.

In 2006, developers YT Wong and SMI Construction filed an application with the Alameda Planning Department to merge two parcels in the unincorporated Fairview area into a single parcel of approximately two acres and then to subdivide the two-acre parcel into 12 lots. Single-family homes were proposed for each of the 12 lots.

The Alameda County Planning Commission approved the development based on the exemption in CEQA Guidelines 15332. Fairview residents Fred and D'Arcy Tomlinson argued the county should prepare an environmental review of the project, which was within a half-mile of Interstate 580, because of concern over cumulative traffic impacts. They appealed the Planning Commission decision to the Board of Supervisors. The board affirmed the approval and the Tomlinsons filed a lawsuit. The Alameda County Superior Court rejected the Tomlinsons' claims.

The appellate court considered two issues: 1) whether Public Resources Code 21177 required the Tomlinsons to exhaust their administrative remedies before filing suit; and 2) whether the project at issue qualified as in-fill development for the purposes of Guidelines 15332. The appellate court concluded that the Tomlinsons were not required to exhaust their administrative remedies because the exhaustion requirement in Public Resources Code 21177 does not apply to exemption determinations. In so holding, the court said its function was to interpret the statute, and the meaning of the statute affects more than just the county.

The appellate court next considered the meaning of Guideline 15332, which categorically exempts infill development if, among other things, the "proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses." The Tomlinsons argued the project, proposed for the unincorporated area of Alameda County, could not qualify for the infill exemption because it was not proposed within "clearly demarcated (and commonly accepted) legal boundaries of a municipality" and thus was not "within the city limits." The county claimed the subdivision was proposed for an "established urban area" because it was in an obviously urbanized area within one-half mile of Interstate 580, and 15332 had to be read more broadly to promote infill within urbanized areas.

Reading the statute to give independent effect to both the requirement that a project occur "within city limits" and that the project be "substantially surrounded by urban uses," the appellate court found that a project had to be within established city boundaries to qualify for the exemption. The appellate court further found that the phrase "urbanized area" is defined in the CEQA guidelines, so if the secretary for resources wanted to use that phrase, he could have and would have. Instead the guidelines specify "within city limits." According to the court, this strongly suggests the secretary intended a different meaning for "within city limits."

The county argued that such a narrow reading frustrated the goal of the exemption. The court however, refused to place the policy of promoting infill ahead of the explicit requirements of CEQA, finding such policy judgments are outside the purview of the court.

 

The Case:

Tomlinson v. County of Alameda, No. A125471, 2010 DJDAR 9247. Filed June 18, 2010.

The Lawyers:

For Tomlinson: Sabrina V. Teller, Remy, Thomas, Moose & Manley, (916) 443-2745.

For the county: Manuel F. Martinez, associate county counsel, (510) 272-6700

For the developers: Richard K. Abdalah, (408) 252-5211