Judge: William D. Claster, Case: 21-01235816, Date: 2022-09-09 Tentative Ruling

1.  Real Party in Interest Michael Ray's Joint Demurrer to First Amended Petition for Writ of Mandamus ROA #62

2. Status Conference

Respondent City of Laguna Beach and Real Party in Interest Michael Ray’s demurrer to the first amended petition of Petitioners Laguna Beach Historic Preservation Coalition and Catherine Jurca is OVERRULED. Respondent and Real Party in Interest shall file an answer to the Petition on or before September 26, 2022.

The Court requested supplemental briefing from the parties on two questions:

1. Is an administrative appeal pursuant to Public Resources Code § 21151 governed by the 14-day period for appeals provided by Laguna Beach Municipal Code section 25.05.070(A)? If not, what is the applicable period? Also, if not, what is the effect, if any, of Petitioners’ late-filed appeal that the City rejected as untimely?

2. Is there authority for the situation where an administrative appeal has been withdrawn and the time for filing an appeal has expired? If so, does the withdrawal of the appeal excuse the exhaustion of administrative remedies requirement?

As the City and Ray point out, while Pub. Resources Code § 21151 confers a substantive right to appeal a non-elected decision-making body’s approval of a negative declaration, CEQA Guidelines (14 Cal. Code Regs.) § 15185(a) provides that the procedures for such an appeal “shall be handled according to the procedures of that agency.”  As a leading treatise explains, “To perfect an appeal, a party objecting to a CEQA determination must comply with any requirements in the agency's appeal procedures such as the time and method for filing an appeal, and stating the grounds for appeal or identification of the issues on appeal.” (Kostka & Zischke, Practice Under the California Environmental Quality Act (Cont. Ed. Bar. 2021) § 23.103.)  Further, “Where an appeal process is available and a party fails to exhaust its administrative remedies, it may not bring a judicial action challenging the environmental determination.”  (McCann v. City of San Diego (2021) 70 Cal.App.5th 51, 77.)

The question, then, is whether the City’s Municipal Code makes an appeal process available to Petitioners.  While the City and Ray acknowledge that Petitioners do not fall into either of the two categories that are permitted to appeal—“[an] applicant or any owner of property within three hundred feet of the subject property”—they assert that the 14-day time limit for bringing an appeal should apply to Petitioners based on “principles of consistency, even-handedness and fairness.” (City and Ray’s Supp. Brief p. 4)

The argument of the City and Ray flies in the face of the specific language of the Municipal Code. Laguna Beach Municipal Code § 25.05.070(B)(1) provides that appeals of design review board decisions “may be appealed to the city council by the applicant or any owner of property within three hundred feet of the subject property.”  The familiar canon of statutory construction, expressio unius est exclusio alterius, provides that when the legislature lists certain persons who may appeal, but not others, only the listed persons may appeal.  Petitioners are neither the project applicant nor neighboring landowners, so the Municipal Code does not permit them to appeal.  Because there was no way for Petitioners to exhaust administrative remedies at the agency level, the exhaustion requirement does not apply.  (See Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 702.)

The City and Ray suggest this would lead to absurd results.  The Court disagrees.  The City Council is free to amend the Municipal Code to prevent this problem from recurring in the future.  Furthermore, the City and Ray’s interpretation of the Municipal Code would require Petitioners to somehow know that a provision that never mentions someone in their position nonetheless applies to them.

Because Petitioners should not be made to bear the consequences of the City’s failure to provide a path to administrative exhaustion, the demurrer is overruled.