Opinion
A166163
11-06-2023
PAUL LESLIE, Plaintiff and Appellant, v. COUNTY OF HUMBOLDT et al., Defendants and Respondents; MIKE T. MCENRY, Real Party in Interest.
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CV2101720
MARGULIES, J.
Paul Leslie (plaintiff) appeals from a judgment sustaining without leave to amend defendants' demurrer to his first amended petition for writ of mandate. Plaintiff challenged Humboldt County's (County) approval of a construction permit for an onsite wastewater treatment system (OWTS) installed by his neighbor, Mike T. McEnry. In the spring of 2018, the County denied McEnry's application for a permit, and after McEnry appealed, the County board of supervisors affirmed the denial in April 2019. Two years later, the County issued McEnry a permit for his OWTS.
Plaintiff filed a petition for writ of mandate alleging, among other things, that the County lacked jurisdiction to issue the permit and failed to give required notice of the approval to interested persons, including him. The trial court sustained defendants' demurrer without leave to amend based on plaintiff's failure to exhaust administrative remedies. We will affirm.
I. BACKGROUND
A. Factual Background
1. Relevant State and Local Regulations
The State Water Resources Control Board formulates and adopts state policy for water quality control pursuant to Water Code section 13140, and Water Code section 13291 requires the adoption of regulations or standards for the permitting and operation of onsite wastewater treatment systems. Effective May 2013, the State Water Resources Control Board adopted its "Water Quality Control Policy for Siting, Design, Operation, and Maintenance of Onsite Wastewater Treatment Systems" (OWTS Policy).
In late 2017, the Humboldt County Board of Supervisors (Board) developed and adopted an "Onsite Wastewater Local Agency Management Program" (LAMP) to comply with the OWTS Policy. Together, the LAMP and OWTS Policy allow for the continued use of onsite wastewater treatment systems in a manner that protects water quality and public health. The LAMP is accompanied by a Humboldt County "Onsite Wastewater Treatment System Regulation and Technical Manual" (RTM), which is issued by the Humboldt County Health Officer (Health Officer) in compliance with relevant provisions of the Humboldt County Code that govern management of onsite wastewater treatment systems.
The Humboldt County Code (Code) provides that "[n]o person shall construct . . . any kind of onsite wastewater treatment system or any portion thereof without having first obtained a permit to do so from the Health Officer." (Humboldt County Code, § 612-2, subd. (a).) "If the Health Officer finds that the proposed onsite wastewater treatment system conforms to the requirements of [the Code], regulations issued by the Health Officer, and other relevant state laws, regulations, and policies, he/she shall approve the permit application." (Id., subd. (e), italics added.) However, the "Health Officer shall not approve an application if he/she finds that the proposed onsite wastewater treatment system does not conform to all the requirements of [the Code], regulations issued by the Health Officer, or other pertinent laws, regulations, policies, and Code sections." (Id., subd. (f), italics added.)
The LAMP identifies certain areas in Humboldt County known to exhibit challenging conditions listed in section 9.1 of the state OWTS Policy. Those areas, termed "Variance Prohibition Areas" (VPAs), allow mitigation measures for new OWTS construction, but the LAMP specifically states as to those areas, "No variances to siting and design standards will be considered." The RTM notes, "New OWTS design proposals within VPAs must strictly adhere to these regulations. Variances (formerly known as waivers) cannot be granted for new OWTS construction."
The RTM also describes the process to apply for a "variance" when a proposed design for an OWTS does not "meet any standard contained in the Humboldt County OWTS Regulations and Technical Manual or applicable state policy." (RTM, § 3.8.3.) "For DEH [(Humboldt County Department of Health &Human Services, Division of Environmental Health)] to consider a variance to any standard, the applicant must submit an OWTS Variance Application. Variances may be granted when the applicant can demonstrate that water quality will not be impaired and public health will not be impacted as a result of the variance. Variances cannot be granted to parcels within the Variance Prohibition Area(s)." (Ibid.)
Among the requirements identified in the RTM for new OWTS construction are setbacks from adjacent property lines. The minimum horizontal distance from adjacent property lines with private water is 50 feet.
2. Initial Denial of Permit for McEnry's OWTS
Mike T. McEnry owns property located on Riverbar Road in Hydesville, California. McEnry's property is a 108-foot by 155-foot parcel (approximately 0.38 acres) in close proximity to the Van Duzen River. Plaintiff owns a home and resides on property which abuts McEnry's property.
Sometime before December 2017, McEnry constructed a below-ground OWTS on his property without obtaining a permit from Humboldt County. On December 20, 2017, the Humboldt County Department of Health &Human Services, Division of Environmental Health (DEH) issued a notice of violation to McEnry. A year later, McEnry applied to the DEH to obtain a permit for the OWTS he had already constructed. In January 2019, the DEH denied the permit.
Plaintiff alleges the DEH denied (in January 2019) and later approved (in April 2021) the permit for McEnry's OWTS. Defendants insist the Health Officer approves permits for OWTS, citing to the Humboldt County Code, sections 611-2, subdivision (g) and 612-2, subdivsion (a). The LAMP, however, indicates that the DEH is "the authority for permitting OWTS and implementing this LAMP," and the RTM explains the DEH "is the authorized representative of the Health Officer in matters pertaining to [OWTS] management in Humboldt County." In addition, the DEH staff report to the Board from April 2019, attached as an exhibit to plaintiff's first amended petition, explains that the "DEH acting on behalf of the Health Officer" denied the OWTS permit and recommended that the Board "affirm the DEH's action." Plaintiff explains in his first amended petition that the Health Officer was no longer named because even though action taken on the permit application was under the Health Officer's "ultimate authority," it appeared the Health Officer had delegated the duty to respond to the permit application to the DEH. Because it appears from the well-pleaded allegations of the FAP, exhibits attached thereto, and relevant portions of the LAMP and RTM that the DEH took action on the permits in this case on behalf of the Health Officer, and defendants make no showing that the distinction is pertinent to our analysis, we will refer to the DEH's actions with respect to McEnry's OWTS permit. We also note that both parties refer to the Humboldt County "Department" of Environmental Health, but it appears the correct entity is the Division of Environmental Health. (See, e.g., Humboldt County Code, § 612-3, subds. (a), (c).)
McEnry appealed the decision to the Board, which affirmed the denial in April 2019. The Board directed that notice be given "to the permit applicant, the Director of DEH, the Director of the Building Division, and any other interested party."
3. Approval of the OWTS Permit
Two years later, on April 26, 2021, the DEH issued a permit to McEnry. Plaintiff alleges the permit was "based upon the same McEnry Permit Application which had been appealed to the Board, and which had been denied [in 2019]." Prior to issuing its permit to McEnry, the DEH did not notify plaintiff or any other neighbors of its intent to issue the permit.
B. Procedural History and Plaintiff's Claims
In December 2021, plaintiff filed a petition for declaratory relief and writ of mandate, challenging the approval of McEnry's permit. Defendants demurred on the ground plaintiff had failed to exhaust his administrative remedies because he failed to appeal the approval of the permit to the Board. The trial court sustained the demurrer, with leave to amend, for plaintiff to allege facts showing an exception to the exhaustion of administrative remedies requirement.
Plaintiff filed the operative pleading, his first amended petition (FAP), in May 2022. In his FAP, plaintiff alleges McEnry's property is located squarely within an area of the "Van Duzen River Hydrologic Unit" designated as a VPA, in which building a below-ground OWTS is prohibited by the Humboldt County Code.
Plaintiff alleges, "The County claims that after a neighbor withdrew her objection to the issuance of the permit,[fn. omitted] DEH issued the permit." In the footnote, plaintiff explains that shortly after the Board affirmed the initial denial by the DEH, a letter of" 'permission'" was provided by Shirley Chisum, one of McEnry's neighbors. The letter, signed and dated June 11, 2019, gave "permission and grant[ed] variance" to McEnry for a reduced property line setback for his septic system. Over a year earlier, on May 8, 2018, Chisum had submitted to the DEH what appears to be the same letter of permission with a handwritten statement at the bottom stating as follows: "I cannot sign this for Mr. McEnry. Not sure what it would do to the value of my property when I sell. [¶] I am so disappointed in Humboldt County building and planning departments because I was told four years ago that this lot was to [sic] small to build on. [¶] Not sure why the lot split was allowed in the first place because it has created a public nuisance." Plaintiff alleges that notwithstanding the letter of" 'permission'" from Chisum, the DEH lacked jurisdiction to issue the permit because the Board had not acted legislatively to change the designation of the VPA. Accordingly, the permit was void. Plaintiff further alleged that even if the DEH had authority to issue the permit, the permit is "defective" because the DEH failed to comply with due process by notifying interested persons, including plaintiff, of its intent to grant the permit.
After learning of the issuance of the permit, plaintiff's counsel sent a letter to the Health Officer, regarding the County's failure to apply its VPA in connection with McEnry's permit. Counsel received no response from the County.
Plaintiff alleged exhaustion of administrative remedies was not required because the "DEH acted in excess of the power delegated to it by the Board, and also in flat contradiction to the Board's determination, acting in both its legislative capacity (in establishing the Van Duzen River Hydrological [sic] Unit as a 'Variance Prohibition Area' barring any variance for a below-ground septic system) and in its quasi-judicial capacity (DEH's failure to comply with the clear direction of the Board given while exercising its quasi-adjudicative authority sitting in judgment of the McEnry Permit Application that the McEnry Permit Application was to be denied, and interested parties notified)." Plaintiff further alleged that by failing to notify interested parties of the approval of the permit, the DEH overrode the expressed clear intent of the Board that due process be afforded to interested parties. Because the Board had already denied the permit, the only "ministerial" action the DEH could take was to uphold, and not vary from, the Board's final quasi-judicial decision to deny the permit.
Plaintiff asserted three causes of action: two for declaratory relief and one for traditional writ of mandate (Code Civ. Proc., § 1085). The first claim seeks a declaration that the permit is void for lack of jurisdiction because the DEH lacked power to approve the permit the Board had already denied and lacked power to approve a permit in the VPA. The second cause of action seeks a declaration that the permit is void for lack of due process because the DEH failed to notify interested parties, including plaintiff, of the approval of the permit, in spite of express direction from the Board that all interested parties be afforded due process regarding action taken on the permit application. The third cause of action seeks a writ of mandate directing defendants to "comply with the laws and regulations governing the issuance of the permit."
Defendants demurred to the FAP on the grounds that plaintiff was not entitled to declaratory relief because he sought redress for past actions not prospective relief, plaintiff failed to exhaust administrative remedies, and approval of the permit by the Health Officer was not void. The trial court sustained defendants' demurrer without leave to amend and entered a judgment of dismissal. Plaintiff timely appealed.
Although the trial court's written order does not state a basis for its ruling, the court's oral comments at the hearing on the demurrer indicate the court sustained the demurrer without leave to amend for failure to exhaust administrative remedies.
II. DISCUSSION
A. Standard of Review
On appeal from a judgment based on an order sustaining a demurrer, we assume all the facts alleged in the complaint (or petition) are true. (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 528.) We accept all properly pleaded material facts, but not contentions, deductions, or conclusions of fact or law. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) We may also consider matters subject to judicial notice. (Ibid.) We determine de novo whether the complaint (or petition) alleges facts sufficient to state a cause of action under any legal theory. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) We read the complaint (or petition) as a whole and its parts in their context to give the pleading a reasonable interpretation. (Evans v. City of Berkeley, at p. 6.)
"When a trial court has sustained a demurrer without leave to amend, 'we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 'The burden of proving such reasonable possibility is squarely on the plaintiff.'" (Crestwood Behavioral Health, Inc. v. Baass (2023) 91 Cal.App.5th 1, 16.)
B. Analysis
Plaintiff contends the trial court abused its discretion in sustaining the demurrer without leave to amend because he pleaded more than sufficient facts to establish the DEH's failure to give notice of its intent to issue the permit and its lack of jurisdiction to issue the permit. Plaintiff argues that once the Board affirmed the DEH's initial denial of the permit, the DEH was without jurisdiction to change the Board's ruling. Moreover, plaintiff asserts the permit could not be issued without a variance because the OWTS failed to meet required setbacks from property lines, but the DEH lacked jurisdiction to grant a variance from the setback requirements because the property is located in a VPA. Defendants contend plaintiff's claims are barred because he had an administrative remedy to appeal the permit approval to the Board, and his failure to follow that procedure presents a jurisdictional bar to his action.
1. Exhaustion of Administrative Remedies
"The 'rule of exhaustion of administrative remedies is well established in California jurisprudence ....' (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321 (Campbell).) Generally, it means a party must exhaust administrative remedies before resorting to the courts. (Coachella Valley Mosquito &Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080.) More specifically,' "[t]he doctrine of exhaustion of administrative remedies requires that where a remedy before an administrative agency is provided by statute, regulation, or ordinance, relief must be sought by exhausting this remedy before the courts will act." '" (Parthemore v. Col (2013) 221 Cal.App.4th 1372, 1379; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292.) "Exhaustion of administrative remedies is 'a jurisdictional prerequisite to resort to the courts.'" (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70, italics omitted.)
A court may properly sustain a demurrer when a plaintiff fails to plead exhaustion of administrative remedies. (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 156.) "A complaint is vulnerable to demurrer on administrative exhaustion grounds when it fails to plead either that administrative remedies were exhausted or that a valid excuse exists for not exhausting. (See Campbell, supra, 35 Cal.4th at pp. 321-322, 333; Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 736-737; Hood v. Hacienda La Puente Unified School Dist. (1998) 65 Cal.App.4th 435, 439.) A complaint is also vulnerable to demurrer on administrative exhaustion grounds where the complaint's allegations, documents attached thereto, or judicially noticeable facts indicate that exhaustion has not occurred and no valid excuse is alleged in the pleading to avoid the exhaustion requirement." (Parthemore v. Col, supra, 221 Cal.App.4th at p. 1379.)
Here, the County has a codified appeals process for challenges to approved OWTS permits. The Humboldt County Code provides: "Any person affected by an approval . . . of a permit by the Health Officer may appeal to the Board of Supervisors by filing a notice of appeal . . . within thirty (30) days of the action of the Health Officer or receipt of written notice by the Health Officer, whichever is later." (Humboldt County Code, § 612-3, subd. (a).)
It is undisputed that plaintiff did not appeal the approval of the OWTS permit in April 2021 to the Board. Because an administrative remedy existed to redress plaintiff's grievance and he did not pursue it, his complaint is barred unless he alleges facts showing the exhaustion requirement was excused.
2. Due Process
Plaintiff contends the exhaustion of administrative remedies requirement was excused because the administrative remedy is inadequate in that it fails to comport with due process. There are several well-established exceptions to the exhaustion doctrine in California law." 'The doctrine is inapplicable where "the administrative remedy is inadequate [citation]; where it is unavailable [citation]; or where it would be futile to pursue such remedy [citation]."' (Automotive Management Group, Inc. v. New Motor Vehicle Bd. (1993) 20 Cal.App.4th 1002, 1015.) A remedy is not adequate if it does not square with the requirements of due process." (Unnamed Physician v. Board of Trustees (2001) 93 Cal.App.4th 607, 620.)
As noted above, the Humboldt County Code provides that any person affected by an approval may appeal the Health Officer's decision within 30 days of the action or written notice by the Health Officer, whichever is later. (Humboldt County Code, § 612-3, subd. (a).) The Code specifically defines" '[a]ny person affected'" to include "the owners or their agents of all adjoining properties to the property against which the action of the Health Officer is directed." (Id., subd. (e).) Plaintiff contends the DEH's failure to provide him notice of the 2021 permit approval as required by its "own code" deprived him of due process and excuses his compliance with exhaustion requirements.
Plaintiff's FAP, however, alleges plaintiff "learn[ed] of the issuance of the permit" sometime on or before July 1, 2021, at which time the Harland Law Firm, sent a letter to the Health Officer regarding the issuance of the permit. As stated above, the Humboldt County Code provides: "Any person affected by an approval . . . of a permit by the Health Officer may appeal to the Board of Supervisors by filing a notice of appeal . . . within thirty (30) days of the action of the Health Officer or receipt of written notice by the Health Officer, whichever is later." (Humboldt County Code, § 612-3, subd. (a), italics added.) Although plaintiff does not clearly allege how he received notice of the issuance of the permit by July 1, 2021, if he did not receive (and still has not received) written notice from the Health Officer then, under the express provisions of the County's own code, an appeal to the Board would still be timely and is still available to plaintiff. Because plaintiff has not alleged he even attempted to pursue the administrative appellate process or that it was unavailable to him, he has not pled the administrative remedy is inadequate.
Indeed, at oral argument, plaintiff's counsel affirmed that plaintiff did not receive written notice from the Health Officer, and counsel for the County affirmed that an appeal to the Board "absolutely" would be timely if filed now. Although plaintiff argued that, "practically speaking," her client would be prejudiced by having to pursue an administrative appeal at this stage, a remedy is not" 'inadequate merely because additional time and effort would be consumed by its being pursued through the ordinary course of the law.'" (Unnamed Physician v. Board of Trustees, supra, 93 Cal.App.4th at p. 620.)
A remedy is inadequate if it does not provide" 'clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties.'" (Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 384; City of Oakland v. Oakland Police &Fire Retirement System (2014) 224 Cal.App.4th 210, 236.) The Humboldt County Code provides that on receipt of a timely notice of appeal, the Board must set the matter for hearing, conduct the hearing, and make a determination. (Humboldt County Code, § 612-3.) Plaintiff here makes no argument that the County's appeals process lacks adequate procedures for the acceptance of his appeal or resolution of his dispute.
Moreover, as the County contends, plaintiff can assert his due process claim in his appeal to the Board. (Bockover v. Perko (1994) 28 Cal.App.4th 479, 486 [general rule of exhaustion forbids a judicial action when administrative remedies have not been exhausted, even as to constitutional challenges]; Los Globos Corp. v. City of Los Angeles (2017) 17 Cal.App.5th 627, 634-635 [trial court properly sustained demurrer based on failure to exhaust administrative remedies because plaintiff could have appealed revocation of certificate of occupancy and the city's alleged failure to comport with due process when revoking certificate prior to filing judicial action].)
We find unpersuasive plaintiff's citation to Horn v. County of Ventura (1979) 24 Cal.3d 605 (Horn) in support of his claim that he is not required to exhaust administrative remedies with the County before filing a judicial action. In Horn, the plaintiff alleged the county exceeded its jurisdiction by approving a tentative subdivision map without constitutionally adequate notice and hearing procedures to affected landowners. The county had issued a negative declaration under CEQA (California Environmental Quality Act; Pub. Resources Code, § 21000 et seq.) and approved the tentative map on condition that the real party in interest developer install sewers on the lots. (Horn, at p. 610.) After the tentative approval, the plaintiff purchased property adjacent to the proposed subdivision. Meanwhile, the developer had appealed the imposition of the sewer condition and a hearing was held on that issue. The plaintiff learned of the hearing by chance, and appeared at the hearing to complain that no notice or opportunity for hearing had been provided to affected property owners. The board of supervisors refused to consider any issue other than the sewer condition, and twice denied the plaintiff's requests for a public hearing. (Id. at pp. 610-611.) Our Supreme Court held the plaintiff was not barred by a failure to exhaust administrative remedies under the circumstances because the "plaintiff did exhaust the only available administrative means to invoke his asserted right to full notice and hearing" by appearing twice before the final arbiter, "reciting the lack of adequate notice to affected property owners," and requesting relief, but his entreaties were rejected. (Id. at pp. 610-612.)
Here, unlike Horn, plaintiff has an available administrative remedy in the form of an appeal to the Board. Further, unlike the plaintiff in Horn, who twice appeared at public hearings to object, plaintiff has not alleged that he even attempted to exercise his codified administrative right to appeal.
Because plaintiff failed to plead facts showing the appeal process provided by the Humboldt County Code (and still available) to plaintiff is inadequate, the trial court did not err in sustaining the demurrer on the basis plaintiff failed to exhaust his administrative remedies.
Because plaintiff failed to plead exhaustion of administrative remedies was excused, we need not address the County's assertion that notice was not required because the approval of the permit was ministerial.
3. Lack of Jurisdiction
Plaintiff also asserts his failure to exhaust administrative remedies is excused because the DEH lacked jurisdiction to issue the 2021 permit after the Board had already affirmed the initial denial in 2019 following a full hearing and after McEnry failed to appeal that decision. Plaintiff contends because the DEH acted in excess of its jurisdiction in issuing the permit, its acts are void and subject to collateral attack for lack of jurisdiction.
The requirement of an "exhaustion of administrative remedies may be excused when a party claims that 'the agency lacks authority, statutory or otherwise, to resolve the underlying dispute between the parties.'" (Coachella Valley Mosquito &Vector Control Dist. v. California Public Employment Relations, supra, 35 Cal.4th at pp. 1081-1082 (Coachella Valley); McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 287288 (McAllister) [rejecting plaintiff's argument that exhaustion was excused because the county's approval of neighbor's coastal development project was null and void].)
"Generally speaking, even where questions concerning the agency's jurisdiction are presented, 'the doctrine of exhaustion of administrative remedies requires judicial abstention until there has been a final decision in the administrative forum.' [Citation.] 'One of the principal policy concerns of the exhaustion doctrine is judicial efficiency [citation], which cannot be served if the issue of statutory jurisdiction must be fully plumbed in order to determine whether it should be left to the agency in the first instance.'" (McAllister, supra, 147 Cal.App.4th at p. 276.)
"In deciding whether to entertain a claim that an agency lacks jurisdiction before the agency proceedings have run their course, a court considers three factors: the injury or burden that exhaustion will impose, the strength of the legal argument that the agency lacks jurisdiction, and the extent to which administrative expertise may aid in resolving the jurisdictional issue." (Coachella Valley, supra, 35 Cal.4th at p. 1082.) In his briefing, plaintiff does not address this test, but we agree with the County that all three factors favor resolution of plaintiff's claims in the County's administrative appeal process before he seeks judicial review.
First, plaintiff does not allege he would suffer any unusual or irreparable injury if required to litigate his claims in an appeal to the Board before obtaining judicial resolution of the issue, nor is any apparent. An administrative remedy is not inadequate" 'merely because additional time and effort would be consumed by its being pursued through the ordinary course of the law.'" (Coachella Valley, supra, 35 Cal.4th at p. 1082.)
Second, plaintiff's argument that the DEH acted in excess of its jurisdiction depends largely on resolution of the contested factual circumstances surrounding the issuance of the two permits and interpretation and application of the provisions of the Humboldt County Code and the Board's own policies. As noted above, plaintiff asserts the County lacks jurisdiction for two reasons: first, because the DEH lacked authority to issue a permit based on the same application the Board had already rejected after a final decision, and second, because under the Board's own regulations, the DEH lacked jurisdiction to issue the permit in a VPA. Although plaintiff alleges that the issuance of the permit was based on the same application which the County had previously rejected, plaintiff's FAP also alleges that after the initial permit denial, a neighbor withdrew her objection to issuance of the permit and the DEH issued the permit. Thus, it is not clear whether the DEH issued the permit based on the same facts previously considered by the Board. When "the jurisdictional question rests on disputed facts, administrative exhaustion precludes the litigation of those facts for the first time in court." (Tesoro Refining &Marketing Co. LLC v. Los Angeles Regional Water Quality Control Bd. (2019) 42 Cal.App.5th 453, 470; see Mumaw v. City of Glendale (1969) 270 Cal.App.2d 454, 461 [remanding to municipal agencies for determination of jurisdictional issue that was not raised until review stage in the superior court].)
Similarly, plaintiff's allegation that the DEH acted in excess of its jurisdiction by issuing the permit in a VPA depends on its authority under the Humboldt County Code and interpretation of the Board's own LAMP and RTM as it applies to the unique factual circumstances of this case. All of these questions involve mixed questions of law and fact on which the Board has experience and expertise, and which should be resolved first in the administrative proceeding." 'When pursuing the administrative remedy will cause irreparable injury and the lack of agency jurisdiction clearly appears from considerations that are not within the agency's specialized understanding, exhaustion should not be required. But when the administrative proceeding involves no unusual expense and when the agency's specialized understanding may contribute to a proper determination, a requirement of exhaustion may be desirable.'" (Public Employment Relations Bd. v. Superior Court (1993) 13 Cal.App.4th 1816, 1829.) That is the case here.
We find unpersuasive plaintiff's reliance on Save Oxnard Shores v. California Coastal Com. (1986) 179 Cal.App.3d 140, 149-150, Olive Proration etc. Com. v. Agri. etc. Com. (1941) 17 Cal.2d 204, 209, and Chas. L. Harney, Inc. v. State of California (1963) 217 Cal.App.2d 77, 97. Plaintiff cites to these cases for the general legal principle that absent express statutory authority, an administrative agency may not change a determination made on facts presented at a full hearing once the decision is final, but none of them discussed the issue in the context of exhaustion of administrative remedies. In any event, unlike in those cases, where the jurisdictional question was one of law on undisputed facts, here the resolution of the jurisdictional questions turns on disputed issues which have not been determined in the administrative proceeding. Similarly, we are unpersuaded by plaintiff's reliance on City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 400-401, because as the court explained in that case, "the jurisdictional issue is one of law and the lack of jurisdiction is clear on the face of the administrative record." (Id. at p. 399.)
Finally, the third factor weighs heavily in favor of requiring plaintiff to pursue his claims in the administrative proceeding before seeking relief from the court. As noted, the issues presented by his petition concern interpretation of the Board's own regulations and policies and regulations as they apply to disputed facts. By allowing the Board to decide these issues in the first instance, the administrative proceeding will"' "facilitate[] the development of a complete record that draws on administrative expertise and promotes judicial efficiency." '" (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 501.)
After consideration of the applicable factors, we conclude the trial court properly sustained the demurrer on the ground of failure to exhaust administrative remedies.
III. DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: HUMES, P. J. BANKE, J.