Arcadians for Environmental Preservation v. City of Arcadia

Filed 2/16/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ARCADIANS FOR B320586
ENVIRONMENTAL
PRESERVATION, (Los Angeles County
Super. Ct. No.
Plaintiff and Appellant, 20STCP02902)
v.
CITY OF ARCADIA et al.,
Defendants and
Respondents;
JULIE WU et al.,
Real Parties in Interest.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed.
Leibold McClendon & Mann and John G. McClendon for
Plaintiff and Appellant.
Best Best & Krieger, Alisha M. Winterswyk and Amanda
Daams for Defendants and Respondents City of Arcadia and City
Council of the City of Arcadia.
No appearance for Real Parties in Interest Julie Wu and
Wallace Y. Fu Architect, Corp.
After the Arcadia City Council approved Julie Wu’s
application to expand the first story of her single-family home
and add a second story (“the project”), Arcadians for
Environmental Preservation (AEP), a grassroots organization led
by Wu’s next-door neighbor, filed a petition for writ of
administrative mandamus challenging the City’s decision. AEP’s
petition primarily alleged the city council had erred in finding the
project categorically exempt from the requirements of the
California Environmental Quality Act (Pub. Resources Code,
1 2
§§ 21000 et seq.) (CEQA) and CEQA’s implementing guidelines.
The superior court denied the petition, ruling as a threshold
matter that AEP had failed to exhaust its administrative
remedies. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Wu’s Application to the Architectural Review Board for
Approval of First- and Second-story Additions to Her
Single-family Home
In June 2018 Wu submitted an application to the Arcadia
Highlands Homeowners’ Association for approval to expand the
first story of her 1,960-square-foot single-family ranch-style home
and add a second story. After holding several public hearings on
1
Statutory references are to this code unless otherwise
stated.
2
We use the terms “implementing guidelines” or “CEQA
Guidelines” to refer to the regulations for the implementation of
CEQA authorized by the Legislature (Pub. Resources Code,
§ 21083) and codified in title 14, section 15000 et seq. of
the California Code of Regulations (14 Cal. Code Regs.,
§ 15000 et seq.).
2
the project, the architectural review board assigned to Wu’s
3
homeowners’ association denied approval for the project, citing
the project’s mass and height as well as concerns over
compatibility with the design of existing homes.
In 2019 Wu submitted a second application to the
architectural review board to address the concerns the board had
raised with her initial application. As revised, Wu’s project
proposal added 260 square feet to the first story, a 1,140 square-
foot second story, a new 50-square-foot covered front porch and
170 square feet to the existing rear porch. Wu also changed the
design from the prior iteration of the project proposal—a French
Country style—to a ranch home to better fit with the design of
the existing neighborhood.
In response to Wu’s revised application, the architectural
review board requested Wu install story poles to visually
represent the addition so that it could better visualize the scope
of the project. Wu provided a computer-generated simulated
view of the proposed project instead, insisting that story poles
would not provide an accurate representation of the mass of the
building and was an unnecessary and costly undertaking. After
holding a hearing at which community members spoke in favor
and against the proposed project, the architectural review board
denied approval for the project as inconsistent with the City’s
3
There are five homeowners’ associations within the City.
Each association has an architectural review board charged with
implementing the design guidelines adopted by the City. The
architectural review board considers for approval/disapproval
applications for construction of any new structure and additions
or other façade improvements for existing structures.
3
single-family design guidelines relating to massing, height and
scale.
2. Wu’s Appeal to the City’s Planning Commission
On April 13, 2020 Wu timely appealed the decision of the
architectural review board to the City’s planning commission
pursuant to Arcadia Municipal Code section 9108.07. After
conducting a detailed review, the planning commission’s staff
recommended the City conditionally approve the project, provided
Wu make four changes that it determined would make the project
4
compatible with the surrounding area. Under the heading
“Environmental Analysis,” the staff report stated the project
qualified as a “Class 1 Exemption for Existing Facilities from the
requirements of [CEQA] under Section 15301 of the CEQA
Guidelines.” In a preliminary exemption assessment attached to
its report, planning commission staff described the project as
categorically exempt from CEQA as an “[a]ddition to an existing
facility” under CEQA Guideline “section 15301(a).”
On May 26, 2020 the planning commission held a noticed
hearing (using live-stream and telephonic access due to the
COVID-19 emergency) to address Wu’s appeal and its staff
recommendations. Community members spoke in favor and
against approval of the project. Those against, including
Dr. Henry Huey, Wu’s next-door neighbor, asserted the design
infringed on neighbors’ privacy, explaining occupants of Wu’s
4
The planning commission’s staff recommended Wu reduce
the pitch of the roof, lower the second-floor plate height, decrease
window sizes on the second-floor front elevation to be
proportional to those on the first-floor front elevation and modify
the second-floor dormers to accommodate the new window size.
4
property would have a direct view into neighboring homes.
Opponents of the project also argued the size and scale of the
project was incompatible with the design and character of
existing homes.
Following the hearing, the planning commission voted to
adopt staff’s recommendation and conditionally approve the
project, provided Wu revise it to include the four changes staff
recommended. The planning commission’s ruling stated the
project was exempt from CEQA under the class 1 categorical
exemption for additions to existing facilities.
3. Wu’s Next-door Neighbor’s Administrative Appeal of the
Planning Commission’s Approval
On June 8, 2020 Dr. Huey appealed the planning
commission’s approval of the project to the city council in
accordance with the administrative appeal process authorized in
the City’s municipal code. Dr. Huey argued the project’s design,
if implemented, would infringe on the privacy of neighbors. In
addition, he argued the project’s size, scale and certain design
features were incompatible with the existing character of the
neighborhood.
On July 22, 2020 the City issued notice of a public hearing
on Dr. Huey’s appeal to be held using remote access (live-stream
and telephonic due to the COVID-19 emergency) on August 4,
2020. The notice stated the city council would consider at the
hearing an appeal from the planning commission’s conditional
approval of the project. As to CEQA, the notice stated the
hearing would consider “Categorical Exemption per
Section 15301 from the California Environmental Quality Act
(CEQA) for an addition to an existing structure.” The notice
stated, “Persons wishing to comment on the project and/or
5
environmental documents may do so at the public hearing or by
submitting written statements to the City Clerk prior to the
August 4, 2020 hearing.”
The August 4, 2020 meeting agenda stated the city council
would consider “Resolution No. 7329 upholding the Planning
Commission’s approval” of Wu’s project with “a categorical
exemption under the California Environmental Quality Act
(‘CEQA’) to construct a first and second story addition to an
existing one story residence” on Wu’s property. Section 6 of
Resolution No. 7329, which the city council adopted on a vote of
four to one at the end of public comment portion of the hearing,
stated, “[T]he City Council determines that the Project is
Categorically Exempt per Class 1, Section 15301(a) of [CEQA]
Guidelines, and upholds the Planning Commission’s approval” of
the project “subject to” attached conditions.
4. AEP’s Petition for Writ of Administrative Mandamus
Following the city council’s decision, Dr. Huey formed AEP,
described in the complaint in the case at bar as “a grassroots
unincorporated association composed of and supported by
community members and others devoted to the preservation of
the environment.”
On September 9, 2020 AEP petitioned for a writ of
administrative mandamus, primarily alleging the City’s approval
of the project did not comply with CEQA and the city council had
erred in concluding the project was categorically exempt from
CEQA’s requirements. AEP asserted it had exhausted its
administrative remedies. AEP’s petition also alleged the City’s
approval of the project violated specific requirements of the
California Planning and Zoning Law (Gov. Code, § 65000 et seq.)
6
by ignoring the City’s general plan policies and residential design
guidelines.
On September 25, 2020, while this petition was pending,
the City posted in accordance with CEQA requirements a notice
of CEQA exemption, filed with the Los Angeles County Clerk and
duly recorded, stating, “The proposed project qualifies as a
Class 1 Exemption for existing facilities under Section 15301 of
the CEQA Guidelines as it involves an addition that will not
result in an increase of more than 10,000 square feet and the
project is in an area where all public services and facilities are
available to allow for maximum development permissible in the
General Plan and the project site is not located in an
environmentally sensitive area.” As worded, the notice of
exemption refers to subdivision (e) of section 15301 of the CEQA
Guidelines.
On February 2, 2022, following a hearing, the superior
court denied the petition, ruling AEP had failed to raise at the
administrative level the issue of the City’s categorical-exemption
finding pursuant to section 15301 of the CEQA administrative
guidelines and thus had not exhausted its administrative
remedies. The court also rejected AEP’s argument that the City
had “failed to proceed in a manner required by law” because it
had made its exemption determination without considering
whether an exception to the exemption existed. Finally, the court
ruled the City’s decision did not violate the specific requirements
5
of the California Planning and Zoning law.
5
AEP has abandoned on appeal its arguments relating to the
California Planning and Zoning Law.
7
AEP filed a timely notice of appeal from the court’s
judgment.
DISCUSSION
1. Standard of Review
On appeal from denial of a petition for writ of
administrative mandamus, we review the agency’s decision, not
the superior court’s, to determine whether the agency has
prejudicially abused its discretion. (Center for Biological
Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204,
214-215.) An abuse of discretion is established if the agency has
not proceeded in a manner required by law or if the
determination is not supported by substantial evidence.
(§ 21168.5; see Center for Biological Diversity, at p. 215.) We
exercise our independent judgment to determine whether the
agency employed proper procedures and review the agency’s
factual findings for substantial evidence. (Sierra Club v. County
of Fresno (2018) 6 Cal.5th 502, 512; Save Agoura Cornell Knoll v.
City of Agoura Hills (2020) 46 Cal.App.5th 665, 675 (Save
Agoura).)
2. Overview of CEQA
CEQA and its implementing regulations “embody
California’s strong public policy of protecting the environment.”
(Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 285
(Tomlinson).) “CEQA was enacted to advance four related
purposes: to (1) inform the government and public about a
proposed activity’s potential environmental impacts; (2) identify
ways to reduce, or avoid, environmental damage; (3) prevent
environmental damage by requiring project changes via
alternatives or mitigation measures when feasible; and
(4) disclose to the public the rationale for governmental approval
8
of a project that may significantly impact the environment.”
(California Building Industry Assn. v. Bay Area Air Quality
Management Dist. (2015) 62 Cal.4th 369, 382; accord, Save
Agoura, supra, 46 Cal.App.5th at p. 673.)
“CEQA review is undertaken by a lead agency, defined as
‘the public agency which has the principal responsibility for
carrying out or approving a project which may have a significant
effect upon the environment.’” (Friends of the Eel River v. North
Coast Railroad Authority (2017) 3 Cal.5th 677, 712.) The lead
agency’s implementation of CEQA “proceeds by way of a
multistep decision tree, which has been characterized as having
three tiers.” (Union of Medical Marijuana Patients, Inc. v. City of
San Diego (2019) 7 Cal.5th 1171, 1185 (Union of Medical
Marijuana).) First, the agency determines whether the proposed
activity is subject to CEQA at all. “In practice,” this requires the
agency to determine whether the proposed activity constitutes a
“project” as defined in the statutory scheme and CEQA’s
Guidelines. (Id. at pp. 1185-1186.) If not, the lead agency may
proceed without further regard to CEQA. (Ibid.; accord, Muzzy
Ranch Co. v. Solano County Airport Land Use Com. (2007)
41 Cal.4th 372, 380-381.)
Second, assuming the activity is a project, the agency must
decide whether the activity qualifies for a statutory exemption
(see § 21080, subd. (b)(1)) or one of the 33 categorical exemptions
articulated in CEQA’s implementing guidelines. (See 14 Cal.
Code Regs., §§ 15300 [“[s]ection 21084 of the Public Resources
Code requires these guidelines to include a list of classes of
projects which have been determined not to have a significant
effect on the environment and which shall, therefore, be exempt
from the provisions of CEQA”], 15301-15333 [listing 33 classes of
9
projects as categorically exempt from CEQA]; see also Berkeley
Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086,
1104 (Berkeley Hillside) [the categorical exemptions in the CEQA
Guidelines reflect and further the legislative intent that certain
classes of projects have been categorically determined to not have
a significant effect on the environment and thus are exempt from
CEQA].) If an exemption applies, the project is excused from
environmental review. (Union of Medical Marijuana, supra,7 Cal.5th at p. 1186; McCann v. City of San Diego (2021)
70 Cal.App.5th 51, 74.)
If the lead agency determines the proposed activity is a
project subject to CEQA and not categorically exempt from
CEQA’s requirements, CEQA requires the agency to undertake
an initial study to determine whether the project “may have a
significant effect on the environment.” (14 Cal. Code Regs.,
§ 15063, subd. (a); see Friends of College of San Mateo Gardens v.
San Mateo County Community College Dist. (2016) 1 Cal.5th 937,
945.) “If the initial study finds no substantial evidence that the
project may have a significant environmental effect, the lead
agency must prepare a negative declaration, and environmental
review ends. [Citations.] If the initial study identifies potentially
significant environmental effects but (1) those effects can be fully
mitigated by changes in the project and (2) the project applicant
agrees to incorporate those changes, the agency must prepare a
mitigated negative declaration. This too ends CEQA review.”
(Union of Medical Marijuana, supra, 7 Cal.5th at p. 1186.)
However, if the initial study finds substantial evidence that the
project may have a significant environmental impact and a
mitigated negative declaration is inappropriate, the lead agency
must prepare and certify an environmental impact report before
10
approving or proceeding with the project. (Protecting Our Water
& Environmental Resources v. County of Stanislaus (2020)
10 Cal.5th 479, 488.)
3. AEP Failed To Exhaust Its Administrative Remedies on the
Question Whether the Project Fell Within the Scope of the
Class 1 Exemption
a. Governing law
Exhaustion of administrative remedies is a jurisdictional
prerequisite to maintaining an action alleging a lead agency’s
6
noncompliance with CEQA. (§ 21177; Save the Hill Group v.
City of Livermore (2022) 76 Cal.App.5th 1092, 1104-1105 (Save
the Hill); City of Long Beach v. City of Los Angeles (2018)
19 Cal.App.5th 465, 474; Stop Syar Expansion v. County of Napa
(2021) 63 Cal.App.5th 444, 453 (Stop Syar). A challenge to an
agency’s findings that a project is categorically exempt from
CEQA under the CEQA Guidelines is subject to the exhaustion
requirement. (Tomlinson, supra, 54 Cal.4th at p. 291; accord,
McCann v. City of San Diego, supra, 70 Cal.App.5th at p. 82.)
The purpose of CEQA’s exhaustion doctrine is to afford the
public agency the opportunity to hear and respond to articulated
factual issues and legal theories before its actions are subject to
judicial review. (Stop Syar, supra, 63 Cal.App.5th at p. 453; Save
Agoura, supra, 46 Cal.App.5th at p. 677.) To achieve this
6
Section 21177, subdivision (a), provides, “An action or
proceeding shall not be brought pursuant to Section 21167 unless
the alleged grounds for noncompliance with this division were
presented to the public agency orally or in writing by any person
during the public comment period provided by this division or
before the close of the public hearing on the project before the
issuance of the notice of determination.”
11
purpose “the exact issue” must be presented to the agency. (Save
the Hill, supra, 76 Cal.App.5th at p. 1105; North Coast Rivers
Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013)
216 Cal.App.4th 614, 623.) Although the level of precision that
governs an attorney’s objections in the trial court is not required
(see Stop Syar, at p. 453, fn. 3; Save Agoura, at p. 677), the
challenge raised in the administrative proceeding must be
sufficiently specific to “fairly apprise the agency of the substance
of the objection so that it has an opportunity to evaluate and
respond to it.” (Stop Syar, at p. 453; accord, Save the Hill, at
p. 1104.) “[B]land and general references to environmental
matters . . ., or isolated and unelaborated comment[s] do not
satisfy the exhaustion requirement.” (Stop Syar, at p. 453,
[cleaned up]; North Coast Rivers Alliance, at p. 623.) Nor do
“general objections to project approval.” (Save Agoura, at p. 677
[cleaned up]; City of Long Beach v. City of Los Angeles, supra,
19 Cal.App.5th at pp. 474-475.)
The petitioner bears the burden of demonstrating the
issues raised in the petition were presented at the administrative
level. (Save Agoura, supra, 46 Cal.App.5th at p. 677; City of Long
Beach v. City of Los Angeles, supra, 19 Cal.App.5th at p. 475.)
The question of exhaustion is a legal issue subject to de novo
review. (Save Agoura, at p. 677; accord, Stop Syar, supra,
63 Cal.App.5th at p. 453.)
b. AEP’s general objections to project approval did not
satisfy the exhaustion requirement
AEP alleges the City erred in concluding the project fell
within the class 1 categorical exemption for the “minor
alteration of existing public or private structures.” (14 Cal. Code
Regs., § 15301.) According to AEP, because Wu’s addition would
12
increase the floor space of her home by more than 50 percent and
involved a major expansion of an existing use in an
environmentally sensitive area, it fell outside the scope of
7
Guideline section 15301, subdivision (e)(2).
No member of AEP objected on this ground at the
administrative proceeding. (See § 21177, subds. (a) [requiring
objector to present grounds for noncompliance to agency as a
prerequisite for maintaining action for noncompliance with
CEQA], (c) [if petitioner is organization formed after the project’s
approval, exhaustion is satisfied if a member of organization
complied with exhaustion requirement]; Stop Syar, supra,
63 Cal.App.5th at p. 457 [to demonstrate that it exhausted its
administrative remedies, petitioner must show that its
7
CEQA Guideline section 15301 provides in part, “Class 1
consists of . . . minor alteration of existing public or private
structures, facilities, mechanical equipment, or topographical
features, involving negligible or no expansion of existing or
former use. The types of ‘existing facilities’ itemized below are
not intended to be all-inclusive of the types of projects which
might fall within Class 1. The key consideration is whether the
project involves negligible or no expansion of use. [¶] Examples
include but are not limited to: [¶] (a) Interior or exterior
alterations involving such things as interior partitions, plumbing,
and electrical conveyances; [¶] . . . [¶] (e) Additions to existing
structures provided that the addition will not result in an
increase of more than: [¶] (1) 50 percent of the floor area of the
structures before the addition, or 2,500 square feet, whichever is
less; or [¶] (2) 10,000 square feet if: [¶] (A) The project is in an
area where all public services and facilities are available to allow
for maximum development permissible in the General Plan and
[¶] (B) The area in which the project is located is not
environmentally sensitive.”
13
administrative appeal “specifically identified the grounds it
raises in this court action”].)
Recognizing this failure to assert an explicit objection, AEP
highlights statements in Dr. Huey’s written administrative
appeal, asserting they were sufficient to fairly apprise the City of
his objection to the City’s application of the exemption. Dr. Huey
wrote, “The staff report neglects to consider the environmental
impact of expanding the additional first floor living space,
altering the backyard landscape, reshaping the pool,
handling/removing hazardous waste, in the absence of soil
studies to determine the effect of adding a second story,
excavation, altering the topography in a hillside terrain, and the
potential adverse effect on neighbors’ health and living
environment. [¶] . . . [¶] The environmental impact of the
two story addition should also be considered within the context of
the ensuing two story projects to develop along this street of
single story, Ranch style homes . . . . The cascade of ensuing
building developments throughout the neighborhood creates a
cumulative environmental impact that is harmful and which
must be anticipated and which should be analyzed, so that steps
can be taken beforehand to mitigate damage. [¶] . . .[¶]
Cumulative impact analysis is important because history has
shown that environmental damage often occurs from the
accumulation of a variety of relatively smaller projects over time.
The City has not addressed the impacts on the neighborhood
character, natural resources, increased runoff, effects on water
quality, fire risk, energy consumption, traffic and noise pollution,
among various other vital considerations mandated by CEQA.”
Contrary to AEP’s contention, none of these general
references to potential environmental impacts satisfied the
14
exhaustion requirement. As discussed, any project that comes
within a class 1 categorical exemption has been inherently
determined by the Secretary of Natural Resources Agency not to
have significant environmental impacts. (Berkeley Hillside,
supra, 60 Cal.4th at p. 1104.) To preserve AEP’s challenge to
that exemption, therefore, it was incumbent on Dr. Huey (or
some other AEP member) to at least articulate (albeit certainly
not establish) why application of that exemption might be
incorrect. None of Dr. Huey’s general statements, even when
considered together, came close to apprising the City of
Dr. Huey’s current contention the project fell outside the scope of
the class 1 categorical exemption.
AEP asserts Dr. Huey’s request for an environmental
8
impact report did just that. According to AEP, because the
three-step CEQA decision tree requires some form of an
environmental impact report or analysis (step three) only when
the City has found that CEQA applies (step one) and the project
is not otherwise exempt (step two), by requesting an
environmental impact report, Dr. Huey necessarily objected to
the City’s categorical exemption finding. As AEP articulates it in
its opening brief, “[I]f the coach of a Little League team tells his
next batter that she must run to second or third base if she gets a
hit, the batter knows that her coach is implicitly telling her that
8
Dr. Huey concluded his written appeal by stating, “Finally,
I request soil studies and environmental quality impact analysis
to address various vital considerations mandated by CEQA.
These are essential elements to consider in preserving the quality
and attractive character of this unique neighborhood for the
enjoyment of the community and future generations.”
15
it won’t be enough for her to simply run to first base and stay
there.”
AEP’s argument fundamentally misapprehends the
purpose of the exhaustion requirement. To be sure, requesting
an environmental review suggests the individual opposing
approval of an activity may believe it qualifies as a project within
the meaning of CEQA and no exemption applies, but it fails to
provide any form of notice to the public agency as to the
substance of the challenge to a tentative decision not to
undertake an environmental review. Here, the request was
certainly not tantamount to an assertion the class 1 exemption
did not apply to Wu’s planned addition to her home, let alone a
challenge that explained why the requirements for that
exemption might not be satisfied. Such a general, implied
objection is contrary to the mandate of section 21177,
subdivision (a), that the specific grounds be asserted. (See Sierra
Club v. City of Orange (2008) 163 Cal.App.4th 523, 535, 537
[petitioner’s requests for the lead agency to provide “‘a detailed
chronology of the environmental evaluation’” of the proposed
developments and “identify any potential adverse air quality
impacts” constituted the type of “‘isolated and unelaborated
comment[s] by . . . member[s] of the public’ that courts have held
fail to ‘fairly rais[e]’” the objection that the City had not complied
with CEQA]; see generally Stop Syar, supra, 63 Cal.App.5th at
pp. 453-454 [the purpose of exhaustion—enabling the agency to
respond before litigation is initiated—would be undermined by
anything less than requiring the exact issue be raised; otherwise
litigants would be able “‘to narrow, obscure, or even omit their
arguments before the final administrative authority because they
16
could possibly obtain a more favorable decision from a trial
court’”].)
We have found no case, and AEP cites none, where the
request for an environmental impact report, without more, was
held to be sufficient to preserve a challenge to the application of a
particular CEQA exemption. While Dr. Huey was not required to
cite a particular statute or CEQA Guideline (see Save Agoura,
supra, 46 Cal.App.5th at p. 685; McPherson v. City of Manhattan
Beach (2000) 78 Cal.App.4th 1252, 1264), something more than
articulating general environmental concerns was required to
preserve his objection to the application of the class 1 categorical
exemption.
Save Our Residential Environment v. City of West
Hollywood (1992) 9 Cal.App.4th 1745 (SORE), on which AEP
largely relies, does not assist AEP. There, an association of
property owners challenged the adequacy of an environmental
impact report relating to a five-story residential care facility for
senior citizens in the City of West Hollywood. (Id. at p. 1748.) At
issue was “whether the EIR [environmental impact report] for the
Project was required to examine alternative sites outside the
territorial limits of the City, since the EIR found no feasible
alternative sites within the City.” (Ibid.) The City contended
SORE had not exhausted its administrative remedies on that
issue because “SORE did not specifically object to the legal
adequacy of the EIR’s alternative site analysis.” (Id. at p. 1750.)
The appellate court rejected that argument, concluding “that
SORE’s objections to the Project, while not identifying the precise
legal inadequacy upon which the trial court’s ruling ultimately
rested, fairly apprised the City and Rossmoor [the developer] that
SORE believed the environmental impacts of developing the
17
Project on the Rossmoor site would be deleterious to the
surrounding community.” (Ibid.)
As the court observed in California Native Plant Society v.
City of Rancho Cordova (2009) 172 Cal.App.4th 603 when
rejecting SORE as helpful precedent on the question whether the
petitioner had exhausted its remedies, “Given that the appellate
court in SORE failed to identify what SORE’s actual ‘objections to
the Project’ were, the SORE case is of little assistance here, as we
cannot determine exactly what comments the court found were
sufficient to exhaust administrative remedies on the adequacy of
the EIR’s alternative site analysis and thus cannot extrapolate
from the facts of that case a legal principle we can apply to the
facts of this case. Without that detail, SORE at best stands for
the proposition that complaints a project will be deleterious to the
surrounding community may be sufficient to exhaust
administrative remedies on the EIR’s failure to adequately
examine alternative sites.” (Id. at p. 618.) For the same reason,
we, too, find SORE of little value to the issue at hand.
Dr. Huey’s objections the project was inconsistent with the
City’s design guidelines and general plan and infringed on
neighbor privacy were clear, comprehensive and unequivocal.
Conversely, his identification of CEQA generally and request for
an environmental impact report, without more, were precisely
the kind of general references that do not rise to the specific level
of objection necessary for exhaustion. The City would not have
known, for example, that Dr. Huey claimed the project fell
outside Guideline section 15301, subdivision (e)’s exemption for
projects adding less than 10,000 square feet because it was
located in an environmentally sensitive area.
18
c. Exhaustion was not excused
CEQA’s exhaustion requirement is excused when there is
no opportunity for members of the public to object to the agency’s
determination or the agency fails to give the notice of hearing
required by law. (See § 21177, subd. (e) [“[t]his section does not
apply to any alleged grounds for noncompliance with this division
for which there was no public hearing or other opportunity for
members of the public to raise those objections orally or in
writing before the approval of the project, or if the public agency
failed to give the notice required by law”]; Tomlinson, supra,
54 Cal.4th at p. 291 [section 21177’s exhaustion requirement
applies “to a public agency’s decision that a proposed project is
categorically exempt from CEQA compliance as long as the public
agency gives notice of the ground for its exemption
determination, and that determination is preceded by public
hearings at which members of the public had the opportunity to
raise any concerns or objections to the proposed project”];
Los Angeles Dept. of Water & Power v. County of Inyo (2021)
67 Cal.App.5th 1018, 1034 [“‘[w]hen an agency holds a hearing
but does not provide adequate notice that a CEQA exemption will
be considered, the requirement to exhaust remedies on the CEQA
claim does not apply’”].)
Without challenging the legality of the notices of public
9
hearing, AEP asserts exhaustion should be excused because the
agendas posted for the administrative hearings referred
9
AEP does not contend the City’s notices of public hearing
failed to comply with the requirements in CEQA or Arcadia
Municipal Code section 9108.13.020 (identifying public hearing
notice requirements).
19
generally to the consideration of a CEQA exemption, without
identifying which of the 33 exemptions it was considering. AEP’s
argument lacks any merit.
The notice of public hearing for the May 2020 planning
commission hearing specifically stated the commission would
consider Wu’s project appeal and the application of a “Categorical
Exemption per Section 15301 from the California Quality Act
(CEQA) for an addition to an existing structure,” language
unambiguously referring to Guideline section 15301,
subdivision (e). The notice of public hearing for the August 4,
2020 hearing on Dr. Huey’s appeal included identical language
relating to the exemption. In addition, the planning
commission’s staff report and the city council’s staff reports
provided to Dr. Huey in advance of both hearings also identified
the class 1 categorical exemption under Guideline section 15301.
(Cf. Los Angeles Dept. of Water & Power v. County of Inyo, supra,
67 Cal.App.5th at p. 1035 [exhaustion excused when agency
provided no notice of exemption in either its notices of public
hearing or in the meeting agendas].)
There are, as AEP points out, minor inconsistencies in the
City’s identification of the exemption: In its notices of hearing,
the City identified a class 1 categorical exemption under
Guideline section 15301 for an “addition to an existing structure,”
language referring to subdivision (e) of that guideline. The
planning commission’s May 2020 staff report, including an
attached notice of preliminary exemption, and the City’s
August 4, 2020 Resolution 7329, however, identified
subdivision (a) of Guideline section 15301. While greater care
should have been taken by City staff, this discrepancy was
immaterial. By their terms, Guideline section 15301’s
20
subdivisions merely provide examples of class 1 exemptions; they
do not restrict the application of that exemption, which is
ultimately determined by evaluating whether the project involves
a “negligible or no expansion of existing or former use.” (14 Cal.
Code Regs., § 15301.) Significantly, no member of AEP addressed
the class 1 categorical exemption at all at the administrative
level under either subdivision. Nor did any AEP member argue
then, as AEP does now, that the project presented a “major
expansion of use,” transforming a single family-home into a
duplex” and thus falling outside the scope of a class 1 exemption
10
irrespective of the examples listed in Guideline section 15301.
The discrepancy in subdivisions neither negated proper notice of
the City’s intent to apply a class 1 categorical exemption nor
caused any prejudice.
4. AEP Has Not Demonstrated the City Failed To Proceed
In a Manner Required by Law When It Impliedly Found
No Exception To the Exemption Applied
Categorical exemptions in the guidelines are subject to
exceptions enumerated in Guideline section 15300.2. (14 Cal.
Code Regs., § 15601, subd. (b)(2) [a project is exempt from CEQA
if “[t]he project is exempt pursuant to a categorical exemption
(see Article 19, commencing with Section 15300) and the
application of that categorical exemption is not barred by one of
the exceptions set forth in Section 15300.2”]; see Berkeley
Hillside, supra, 60 Cal.4th at p. 1103 [a lead agency may not
determine a categorical exemption applies without considering
10
Although we do not reach the issue in light of our ruling on
exhaustion, our review of the administrative record revealed no
support for AEP’s characterization of the project as a duplex.
21
whether it is foreclosed by an exception].) The two exceptions
that constrain a class 1 categorical exemption are (1) the
cumulative impacts exception and (2) the unusual circumstances
exception. (14 Cal. Code Regs., § 15300.2, subds. (b) [“[a]ll
exemptions for these classes are inapplicable when the
cumulative impact of successive projects of the same type in the
same place, over time is significant”], (c) [“[a] categorical
exemption shall not be used for an activity where there is a
reasonable possibility that the activity will have a significant
effect on the environment due to unusual circumstances”].)
AEP contends the record is devoid of any evidence the City
ever considered whether any exception foreclosed application of
the class 1 exemption and, consequently, failed to proceed in a
manner required by law. For this reason alone, AEP argues, we
must reverse without reaching the merits. (See § 21168.5
[agency abuses its discretion when it does not proceed in a
manner required by law].)
The City’s declaration of a class 1 categorical exemption,
however, included an implied finding that no exception barred
the exemption. (See Respect Life South San Francisco v. City of
South San Francisco (2017) 15 Cal.App.5th 449, 457 [an agency’s
“determination that a project falls within one of CEQA’s
categorical exemptions includes an implied finding that
exceptions to those exemptions are inapplicable”]; San Francisco
Beautiful v. City and County of San Francisco (2014)
226 Cal.App.4th 1012, 1022-1023 [same]; see also Madrigal v.
City of Huntington Beach (2007) 147 Cal.App.4th 1375, 1386;
Association for Protection etc. Values v. City of Ukiah (1991)
2 Cal.App.4th 720, 731.)
22
Relying on Berkeley Hillside, supra, 60 Cal.4th 1086, AEP
insists the guidelines require the agency to make its
consideration of an exception plain on the record before it may
declare an exemption. But neither the guidelines themselves nor
the Berkeley Hillside decision go that far. In Berkeley Hillside
the Supreme Court addressed the “unusual circumstances”
exception, holding that a reasonable possibility that the activity
will have a significant effect on the environment is not, itself,
“unusual circumstances.” (Id. at pp. 1100-1102.) In his
concurring opinion disagreeing with that interpretation of the
unusual circumstances exception, Justice Liu highlighted the
significant burden a project opponent faces in establishing the
exception. (See id. at p. 1130 (conc. opn. of Liu, J. [observing that
“an agency may find that a project falls within a categorical
exemption without first making an express or definitive finding
that no section 15300.2 exception applies; the burden is on the
party challenging the categorical exemption to show that an
exception applies”].) In disputing what Justice Liu described as
the agency’s significant procedural advantage, the Berkeley
Hillside majority stated, “[E]ven if a proposed project faces no
opposition, an agency invoking a categorical exemption may not
simply ignore the unusual circumstances exception; it must
‘consider the issue of significant effects . . . in determining
whether the project is exempt from CEQA where there is some
information or evidence in the record that the project might have
a significant environmental effect.’ [Citation.] This follows from
Guidelines section 15061, subdivisions (a) and (b)(2), which,
respectively, (1) direct a lead agency to determine whether a
proposed project is ‘exempt from CEQA’ and (2) specify that a
project is exempt if a categorical exemption applies ‘and the
23
application of that categorical exemption is not barred by one of
the exceptions set forth in Section 15300.2.’ Thus, an agency may
not apply a categorical exemption without considering evidence
in its files of potentially significant effects, regardless of whether
that evidence comes from its own investigation, the proponent’s
submissions, a project opponent, or some other source.” (Id. at
p. 1103.) In other words, an agency must consider whether an
exemption is subject to an exception and may not ignore contrary
evidence in the record in making that finding. However, the
Berkeley Hillside Court did not hold the finding that no exception
11
bars the exemption must be express.
5. AEP Has Not Demonstrated the City Erred in
Concluding the Cumulative Effects Exception Did Not
Apply
In contrast to his general request for an environmental
impact report, Dr. Huey did assert more specifically the project
had the potential, when considered together with other projects
in the area that had been approved or were seeking approval, to
have “significant, cumulative harmful environmental impact” and
urged the City to conduct a “cumulative impact analysis.” There
is some question whether these remarks, without more, were
sufficient to preserve AEP’s argument that the exemption was
subject to the cumulative effects exception. (See e.g., Banker’s
Hill, Hillcrest, Park West Community Preservation Group v. City
11
Because the lead agency in Berkeley Hillside had expressly
found that the unusual circumstances exception did not apply,
the Court had no occasion to consider the doctrine of implied
findings in this context. (See B.B. v. County of Los Angeles (2020)
10 Cal.5th 1, 11 [cases are not authority for propositions not
considered].)
24
of San Diego (2006) 139 Cal.App.4th 249, 282 [unelaborated
remark at hearing that agency ignored “cumulative effects” was
too general to preserve objection].) However, assuming AEP
satisfied the exhaustion requirement, its argument fails on its
merits.
As discussed, the cumulative effects exception applies
where “the cumulative impact of successive projects of the same
type in the same place, over time is significant.” (14 Cal. Code
Regs., § 15300.2. subd. (b).) “‘Cumulative impacts’ refer to two or
more individual effects which, when considered together, are
considerable or which compound or increase other environmental
impacts. [¶] (a) The individual effects may be changes resulting
from a single project or a number of separate projects. [¶] (b) The
cumulative impact from several projects is the change in the
environment which results from the incremental impact of the
project when added to other closely related past, present, and
reasonably foreseeable probable future projects. Cumulative
impacts can result from individually minor but collectively
significant projects taking place over a period of time.” (14 Cal.
Code Regs., § 15355.)
AEP bore the burden to produce evidence that the
cumulative effects exception barred application of the exemption.
(Berkeley Hillside, supra, 60 Cal.4th at p. 1105 [“[a]s to projects
that meet the requirements of a categorical exemption, a party
challenging the exemption has the burden of producing evidence
supporting an exception”].) AEP contends Dr. Huey did so when,
in his administrative complaint, he referred to the “cumulative
environmental effects caused by multiple large scale projects,”
citing “Elkins place, an adjacent street to the west, where
incrementally larger and larger two story structures have
25
developed in close succession.” In addition, he cited to a number
of projects “that were recently approved or built or seeking
12
approval.”
However, Dr. Huey did not provide any evidence of what
impacts were created by the projects or any other additions to the
single family homes he cited. (See Sierra Club v. West Side
Irrigation Dist. (2005) 128 Cal.App.4th 690, 701-702 [“[m]erely
listing, as the Sierra Club does, other projects occurring in the
area that may cause significant cumulative impacts is not
evidence that the assignments will have impacts or that their
impacts are cumulatively considerable”].) His speculation that
other projects, when approved and considered together with
Wu’s, would create the significant environmental effects was pure
speculation. (See Aptos Residents Assn. v. County of Santa Cruz
(2018) 20 Cal.App.5th 1039, 1051 [“‘speculation that potential
future projects similar to the one under consideration could cause
a cumulative adverse impact,’” is “‘not sufficient to negate a
categorical exemption’”]; Robinson v. City and County of
San Francisco (2012) 208 Cal.App.4th 950, 959-960 [“speculation
that potential future projects similar to the one under
consideration could cause a cumulative adverse impact is not
sufficient to negate a categorical exemption”]; Hines v. California
Coastal Com. (2010) 186 Cal.App.4th 830, 857-858 [same].)
AEP counters that, while it may not have provided
evidence per se of cumulative effects, the City nonetheless had in
12
Dr. Huey’s administrative complaint cited the addresses of
three projects on Monte Place, two on Canyon Road, one on
Highland Vista, two on Highland Oaks and one on Orange Grove
Avenue.
26
its possession “incontrovertible evidence” of the cumulative
impact of “mansionization” by virtue of exhibits submitted in two
different lawsuits against the City by other citizens, and the
court erred in denying its request the court take judicial notice of
that evidence. The court properly denied the request because,
while existence of the lawsuits may be subject to judicial notice as
court records (Evid. Code, § 452, subd. (d)), the truth of the
allegations and evidence in them is not. (See Aixtron, Inc. v.
Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 382; Columbia
Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d
457, 473.) There was no error.
DISPOSITION
The judgment is affirmed. The City of Arcadia is to recover
its costs on appeal.
PERLUSS, P. J.
We concur:
FEUER, J.

HOWARD, J.

Judge of the Marin County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
27