First District Finds that In-Fill Exemption to CEQA Only Applies Within Boundaries of a Municipality

In Tomlinson v. County of Alameda (2010)189 Cal.App.4th 1029, the First District Court of Appeal examined a determination by Alameda County that a particular project qualified as in-fill, and was therefore exempt from CEQA review. While the project’s location could be described as an “urbanized area,” the court found that an in-fill exemption was inappropriate because the relevant parcel was not within the boundaries of a municipality.

The project in question was the construction of single-family homes in an unincorporated area of Alameda County that was zoned for that use, and that already contained other single-family homes. The County determined that the project was categorically exempt from CEQA review under CEQA Guidelines section 15332, which allows for in-fill development. Fred and D’Arcy Tomlinson challenged this determination. While the Tomlinsons raised several objections during the administrative process, where they were not represented by legal counsel, their central argument in court focused on section 15332, subdivision (b). This provision limits the scope of the exemptionto projects “within city limits,” and the Tomlinsons therefore contended that a project on unincorporated land could not qualify as in-fill. The County responded with two main counterarguments. First, it stated that the Tomlinsons had not exhausted their administrative remedies. Second, it argued that the phrase “within city limits” should be construed to mean within urbanized areas, including those located in unincorporated areas.

On the question of exhaustion, the court relied on Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 (Azusa). Azusa stated that the exhaustion requirement only applies “where (1) CEQA provides a public comment period, or (2) there is a public hearing before a notice of determination is issued.” (Id. at p. 1210.) Using this as its standard, the court, citing two reasons, found that exhaustion did not apply to an exemption determination. First, there is no comment period before an agency issues an exemption finding. Second, there could be no “public hearing before a notice of determination is issued” because such a notice is not filed when an agency declares an exemption. (See Pub. Resources Code, § 21177, subd. (a) (limiting petitioners in CEQA cases to issues presented to an agency “during the comment period . . . or prior to the close of the public hearing on the project before the issuance of the notice of determination”).) For lack of opportunity, therefore, the Tomlinsons were not required to exhaust their argument at the administrative level.

Turning to the substantive issue of interpreting section 15332, the court agreed with the Tomlinsons, finding that the plain meaning of the phrase “within city limits” requires a project to occur within the boundaries of a municipality (city). It was not sufficient for a project to be “within an urbanized area” if such an area is outside a city. The court noted that the term “urbanized area” is defined and used in the Guidelines to explain other categorical exemptions, so the use of the phrase “within city limits,” rather than “within an urbanized area,” suggested a different meaning for the former term.

The court was not persuaded by the County’s contention that the policy behind section 15332 required a less “inflexible” interpretation of “within city limits.” As the court stated, the exemptions listed in the Guidelines reflect a determination by the Secretary for Resources that “particular classes of projects generally do not have a significant effect on the environment.” Given the plain meaning of “within city limits,” the court therefore viewed the County’s point, not as a statement of what in-fill does include, but as an argument that in-fill should include urbanized areas. The court found this to be a policy question beyond its prerogative.