Tips to Ensure You Exhaust Your Administrative Remedies and Don’t Get Ensnared by Res Judicata.

CEQA is a common tool used to oppose land use projects in California by interested parties. For example, environmental groups may comment on a project through the CEQA process to ensure impacts are avoided and adequately mitigated.  Those in the NIMBY camp (Not In My Back Yard) may use CEQA to stop development or at least decrease the magnitude of development by citing traffic impacts, inconsistency with a City’s Land Use Plan, or aesthetics impacts.  It is often thought that labor unions use CEQA to oppose project to negotiate better contracts. Though this may change in light of a recent lawsuit filed by Steptoe & Johnson on behalf of a developer charging the Carpenters and Laborers Unions with unlawfully attempting to use CEQA to block the construction of a residential and retail project in Panorama City. 

 But whatever the reason to oppose a land use project, one important thing to remember is to comment early, appeal to the highest decision maker, and make sure to raise all potential CEQA violations. 

Exhaustion of Administrative Remedies

 A party must inform the public agency of an alleged CEQA violation before filing an action in court. (Pub. Res. Code, § 21177(a)(b); Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338, 358.) Note that commenting during the public review period for an Environmental Impact Report (EIR) may not be enough to exhaust your administrative remedies. 

Moreover, not only must a party inform the public agency of its concerns with the environmental document, but one must also appeal the decision on the environmental determination to the highest decision maker.  This generally requires an appeal up to the City Council or Board of Supervisors.  So, if the planning commission certifies the document and no one appeals that decision to the City Council or Board of Supervisors, the interested party will likely be precluded from bringing a CEQA action in court because of a failure to exhaust all administrative remedies.  

There is one narrow exception to this rule.  If “there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing prior to the approval of the project, or if the public agency failed to give the notice required by law” then the exhaustion doctrine will likely not apply. (Pub. Res. Code § 21177(e).) 

But note that if a City or County has a bifurcated appeal process like the City of San Diego, it will not be enough to Just Appeal the Project. One must ALSO appeal the Environmental Determination.

In the City of San Diego, the question has come up as to how the exhaustion doctrine plays out with its bifurcated appeal process. In Clews Land & Livestock, LLC v. City of San Diego, a private school sought approval from the City of San Diego to build a private, secondary school on land neighboring a commercial horse ranch and equestrian facility.[1] 

The City prepared a Mitigated Negative Declaration (MND) which identified a potential impact on cultural resource.  A neighboring equestrian facility submitted comments, arguing that potential impacts on historical resources, fire hazards, noise, and transportation and traffic should be studied in an EIR. After some additional studies and review, a public hearing officer for the City ultimately approved the project and adopted the MND.  The equestrian facility appealed the approval of the project to the Planning Commission but did not appeal the city’s decision on the MND.  

The City of San Diego had a bifurcated appeal process where the project approval was appealable to the Planning Commission and the environmental determination on the MND was appealable to the City Council under a different form.[2]  Since the equestrian facility only appealed the project approval and not the environmental determination, the Court found that it failed to exhaust its administrative remedies and was unable to raise the CEQA claims to the court.

The important takeaway related to the exhaustion doctrine is that it’s important to comment early and comment often.  If you fail to comment at a lower level hearing, you may not be able to appeal the matter.  And if you fail to comment or appeal the matter, you won’t be able to litigate any alleged CEQA violations. 

Res Judicata Precludes Raising CEQA Claims in Court that Could Have Been Raised in an Previous Lawsuit

Above I explained that you have to “exhaust” your CEQA concerns with the lead public agency (e.g. City or County) before bringing a lawsuit. But, how does it work in the Courts?  

In short, Res Judicata bars the relitigation of a cause of action that’s already been litigated with a final decision or a cause of action that could havebeen litigated.[3]  This is pretty standard stuff.  But where it gets a bit more nuanced is when a court requires that a City or County vacate the approval of a project and vacate certification of the EIRdue to an impact that was not adequately covered.  InIone Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador, the court held that the party was precluded under Res Judicata from litigating on any claims related to the first EIR.[4]  The only claims it could litigate were related to that one impact that the court found was not adequately covered in the first lawsuit.  

In Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador, the County of Amador had certified a final environmental impact report (EIR) and approved a project for an aggregate quarry with related facilities. An interested party opposed the County’s approval and certification of the EIR raising numerous claims. A trial court approved the parties petition as to traffic impacts only.  The court required the County to vacate the approval of a project and vacate certification of the EIR and required correction and recirculation of the EIR as to traffic impacts only.  As to all other issues, the petition was denied.  

The County then issued a partially recirculated draft EIR addressing the traffic impacts, certified the partially recirculated EIR, and again approved the Project. The opposing party brought another lawsuit raising deficiencies in the EIR beyond traffic impacts, most of which could have been raised on the first lawsuit. The Court found that all the claims, other than those related to traffic, were barred by Res Judicata.  Even though this was a new certification of the entire EIR (recall that the County had to vacate the certification of the entire EIR under court order), the trial court’s writ of mandate directed the County to revisit only the 2012 EIR’s traffic impacts analysis. The trial court had denied the first petition for writ of mandate with respect to other parts of the ordinal EIR. Yet the opposing party sought to raise deficiencies in the EIR other than traffic impacts in its second petition that could have been raised in the first lawsuit.  The court  concluded that the other contentions are barred by res judicata because they were, or could have been, raised in its first petition; and the party could have appealed the decision to dismiss the non-traffic related impacts; which it did not. 

The one question the court left open was whether Res Judicata would apply if the recirculated EIR studying traffic impacts related in new and different circumstances which render the newly certified EIR factually different from the prior EIR. The court essentially dismissed this argument because it had not been raised in the opening brief.  



When challenging a land use decision by using CEQA it is imperative to exhaust your administrative remedies by raising any CEQA concerns to the public agency and appealing the CEQA determination to the highest decision maker.  Next, if you choose to litigate a CEQA case, it is important to raise all the claims in the initial lawsuit since res judicata bars those issues that were litigated or could have been litigated at the initial stage; even if an EIR is vacated and a revised EIR is later certified.  

 By Stephanie Smith
Stephanie is a CEQA and Land Use Attorney with Grid Legal

[1]Clews Land & Livestock, LLC v. City of San Diego(2017) 19 Cal.App.5th 161. 

[2]The City divides its procedures for approving development applications into different numbered processes. (Mun. Code, § 112.0501.) The City handled the project at issue here under process three. The bulletin stated, ‘Process Two and Three permit decisions are appealable to the Planning Commission. Process Four permit  decisions are appealable to the City Council. Appeals of Environmental Determinations may be made after all project appeal rights have been exhausted.’ It further stated, ‘All appeals must be made in accordance with the procedures listed in Chapter 11, Article 2, Division 5. All appeals must be made no later than close of business, within ten (10) business days of the original decision date (Process Three and Four) … .’ The bulletin specified the filing location for ‘Process Two and Three Decisions Appealable to the Planning Commission’ as the City’s development services department, and the filing location for ‘Process Four Decisions and Environmental Determinations Appealable to the City Council” as the City Clerk’s office. (Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 178-179.)

[3]“Res judicata or claim preclusion bars relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties or parties in privity with them. Res judicata applies if the decision in the prior proceeding is final and on the merits and the present proceeding is on the same cause of action as the prior proceeding. Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated. ” (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 324, citations omitted.)

[4]Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador (Feb. 26, 2019, No. C081893) ___Cal.App.5th___ [2019 Cal. App. LEXIS 230], certified for partial publication March 20, 2019)