The First District Court of Appeal in Schmid v. City and County of San Francisco (Feb. 1, 2021) 60 Cal.App.5th 470, held that Appellants’ CEQA claims were barred by their failure to exhaust available administrative remedies, even where deficiencies in the notice excused the litigants from satisfying the exhaustion requirements under Public Resources Code section 21177.

BACKGROUND

The “Early Days” statue, located in San Francisco’s Civic Center, is part of the “Pioneer Monument”—a series of five bronze sculptures memorializing the pioneer era when California was founded. The statue depicts three figures, including a reclining Native American over whom bends a Catholic priest. Public criticism has surrounded the statue since its installation in 1894.  

In 2018, after charges of the statue’s racial insensitivity resurfaced, the San Francisco Arts Commission and the San Francisco Historic Preservation Commission (HPC) granted a Certificate of Appropriateness (COA) to remove the statue and place it in storage. In granting that approval, the HPC determined the removal of the statue was categorically exempt from CEQA. There were no issues raised at the HPC hearing about a perceived need for environmental review. Nor were there any appeals of HPC’s CEQA determination to the San Francisco Board of Supervisors. 

Appellants, two opponents of the statue’s removal, appealed the HPC’s adoption of the COA to the San Francisco Board of Appeals. The Board of Appeals initially voted to overturn the COA, but later had it reinstated. After the Board of Appeals approved the COA, the City immediately removed the statue the following morning. 

Appellants filed suit seeking to overturn the Board of Appeals’ order authorizing removal of the statue. They alleged violations of constitutional and statutory law, including CEQA. The trial court sustained a demurrer without leave to amend. On the CEQA claims, the trial court found Appellants failed to exhaust available administrative remedies. Appellants appealed.

COURT OF APPEAL’S DECISION

Exhaustion of Administrative Remedies
The Court of Appeal explained that CEQA litigants must comply with two exhaustion requirements. First, Public Resources Code section 21177 requires that a would-be CEQA petitioner must object during the administrative process and that all allegations raised in the litigation must have been presented to the agency before the challenged decision is made. Second, a would-be CEQA petitioner must exhaust all remedies that are available at the administrative level, including any available administrative appeals. Under Public Resources Code section 21151, a CEQA determination made by a nonelected decision-making body of a local agency may be appealed to the agency’s elected decision-making body, if any. The CEQA Guidelines encourage local agencies to establish procedures for such appeals. As relevant here, the San Francisco Administrative Code requires that appeals of CEQA determinations must be made to the Board of Supervisors, as the body of elected officials responsible for making final CEQA determinations.

The Court of Appeal found Appellants failed to comply with both exhaustion requirements. They did not object to the HCP’s determination that the project was categorically exempt from CEQA during the administrative process and they did exhaust administrative appeals available under the San Francisco Administrative Code. Specifically, on the second point, although Appellants appealed the HPC’s decision to the Board of Appeals, they failed to exhaust available remedies because they did not separately appeal the HPC’s CEQA determination to the Board of Supervisors, as required under the City’s Code.

Appellants argued they were excused from both exhaustion requirements because the City failed to provide adequate notice. The court agreed with Appellants in part, finding that Appellants were not required to comply with the statutory exhaustion requirements in section 21177 because there was no notice in advance of the HPC meeting that a categorical exemption might be on the agenda. But, the court explained, the inadequate CEQA notice did not excuse Appellants from complying with the requirement in the City’s Code that CEQA determinations must be appealed to the Board of Supervisors. The court also noted that Appellants had notice of the HPC’s CEQA determination because they appealed it, improperly, to the Board of Appeals. Because Appellants failed to appeal the CEQA determination to the appropriate body, they forfeited their right to bring a CEQA action.

Futility Argument
Appellants also argued they should be excused from exhausting their administrative remedies because doing so would have been futile. Citing a Board of Supervisors resolution that was not in the record, Appellants argued that an appeal to the proper board would have been futile because the Board of Supervisors already adopted a definitive position that the statue should be taken down. The court rejected this argument, stating that even if the Board of Supervisors held this view as a policy matter, it still could have disagreed with the process of removal and opted for an EIR. In addition, the Court concluded that the Board of Supervisors was never presented with any arguments concerning the appropriateness of a categorical exemption, and thus any argument regarding how the Board of Supervisors would have responded was pure speculation.

– Veronika Morrison