CONTACT US Sacramento Office: Fresno Office: Washington Office: 
FIRM PROFILE Somach Simmons & Dunn provides a unique combination of experience in the fields of water, natural resources, environmental, public land, public agency, toxics and hazardous waste, zoning, planning, and land development law. |
 | |
 |
California Appellate Court Confirms That Fees Charged for CEQA-Based Administrative Appeals Are Valid March 30, 2010 by Joseph M. Carpenter jcarpenter@somachlaw.com |
|
On March 1, 2010, the Court of Appeal for the Second Appellate District held that public agencies are authorized to impose a reasonable fee on persons filing an administrative appeal challenging an agency’s determination under the California Environmental Quality Act (CEQA), Public Resources Code, section 21000 et seq. (Friends of Glendora et al. v. City of Glendora (2010) 182 Cal.App.4th 573 (Friends of Glendora).) In Friends of Glendora, the court concluded that the City of Glendora did not violate CEQA by charging a fee to a project opponent for an appeal to the city council from the planning commission’s decision to approve a negative declaration. Background On February 27, 2008, Friends of Glendora and Erica Landmann-Johnsey, a resident of the City of Glendora (City), brought an action challenging the City’s approval of the Glendora Hospital Partners Project, a 125-bed assisted-living facility. The complaint alleged that the City should have prepared an environmental impact report (EIR) for the project, and challenged the City’s decision to adopt an addendum to a negative declaration and approve the project without an EIR. The complaint further alleged that the City violated CEQA by assessing a $2,000 fee for the filing of an administrative appeal to the city council challenging the planning commission’s decision to approve the project. The complaint, among other things, sought an order declaring that the City violated CEQA when it assessed the appeal fee. The City filed a demurrer to the complaint, contending that the appeal fee was in compliance with CEQA. The trial court sustained the demurrer without leave to amend. Ms. Landmann-Johnsey appealed. The Appellate Court Decision The appellate court held that a public agency may impose a fee to cover the cost of processing an administrative appeal of a negative declaration, despite the fact that there is not express statutory language within CEQA authorizing such a fee. In reaching this decision, the court relied upon Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412 (Sea & Sage Audubon). In that case, the California Supreme Court held that a city was not prohibited from charging a fee for an appeal to the city council from a planning commission’s certification of an EIR. Following Sea & Sage Audubon, the court concluded that specific statutory authorization was likewise not required for the appeal of a planning commission’s decision to approve a negative declaration. The court stated that Ms. Landmann-Johnsey, like the plaintiffs in Sea & Sage Audubon, failed to point to any legislative intent or otherwise cite any authority prohibiting a city from charging an appeal fee to an individual who wishes to challenge the approval of a negative declaration. The court concluded that charging such a fee did not violate CEQA because neither Public Resources Code section 21089, subdivision (a), which allows a city to charge a fee to the proponent of a project for the preparation of a negative declaration, nor any other provision of CEQA reflects legislative intent to foreclose a local agency from imposing a reasonable fee on parties who seek to invoke the administrative appeals process. Conclusions/Implications This case is consistent with the California Supreme Court’s holding in Sea & Sage Audubon. It confirms that local agencies are not prohibited from imposing a reasonable fee for CEQA-based administrative appeals. Based on the holdings and rationale set forth in Sea & Sage Audubon and Friends of Glendora, it is now clear that public agencies may charge an appeal fee on any person who invokes CEQA’s administrative appeals process. The court did not express an opinion on the question of whether the fee imposed was reasonable. The reasonableness of a particular fee is a fact-specific inquiry made on a case-by-case basis, and the California Supreme Court has indicated that a local fee is reasonable if it does not exceed the costs of the service provided. (See Sea & Sage Audubon, supra, 34 Cal.3d at p. 421, fns. 3-4.) Thus, whether a CEQA administrative appeal fee is reasonable turns on whether the amount bears a reasonable relationship to the costs incurred by the public agency as a result of the appeal. (Ibid.) For more information on Friends of Glendora v. City of Glendora (2010) 182 Cal.App.4th 573, please contact Joseph M. Carpenter at jcarpenter@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
