TOMLINSON v. COUNTY OF ALAMEDA

Real Parties’ in Interest Petition for Review

Cal.November 15, 2010

S18816l Case No. SUPREME COURT PILEDIN THE a.SUPREME COURTOF CALIFORNIA NOV 15 2010 Cores elie mipnte yet i iWTSQeele Loritrignts ClarkTP PMSGREDE Ser ghel seFRED AND D’ARCY TOMLINSON, individuals, Petitioners and Appellants, SESETA Vv. COUNTY OF ALAMEDA, BY AND THROUGH THE BOARD OF SUPERVISORS; and DOES 1 THROUGH 20, Defendant and Respondent, Y.T. WONG, SMI CONSTRUCTION, INC., AND DOES 21 THROUGH 30, inclusive, Real Parties In Interest and Respondent. PETITION FOR REVIEW BY REAL PARTIESIN INTEREST AND RESPONDENTS, Y.T. WONG AND SMI CONSTRUCTION,INC. After a Decision by the Court ofAppeal First Appellate District, Division Five, Case No. A12547] Onappealfrom the Superior Court of the State of California for the County ofAlameda, The Honorable Frank Roesch Alameda County Superior Court No. RG08396845 ABDALAH LAW OFFICES A Professional Law Corporation RICHARD K. ABDALAH,SBN 60380 MIRIAM H. WEN-LEBRON,SBN 191429 10455 Torre Avenue Cupertino, California 95014 Telephone: 408.252.5211 Facsimile: 408.996.2004 Attorneys for Real Parties In Interest and Respondent, Y.T. WONG and SMI CONSTRUCTION,INC. Case No. IN THE SUPREME COURT OF CALIFORNIA FRED AND D’ARCY TOMLINSON, individuals, Petitioners and Appellants, Vv. COUNTY OF ALAMEDA, BY AND THROUGH THE — BOARD OF SUPERVISORS;and DOES1 THROUGH20, Defendant and Respondent, Y.T. WONG, SMI CONSTRUCTION,INC., AND DOES21 THROUGH30,inclusive, Real Parties In Interest and Respondent. PETITION FOR REVIEW BY REAL PARTIESIN INTEREST AND RESPONDENTS, Y.T. WONG AND SMI CONSTRUCTION,INC. After a Decision by the Court ofAppeal First Appellate District, Division Five, Case No. Al2547] On appeal from the Superior Court ofthe State of California for the County ofAlameda, The Honorable Frank Roesch Alameda County Superior Court No. RG08396845 ABDALAH LAW OFFICES A Professional Law Corporation RICHARD K. ABDALAH,SBN 60380 MIRIAM H. WEN-LEBRON,SBN 191429 10455 Torre Avenue Cupertino, California 95014 Telephone: 408.252.5211 Facsimile: 408.996.2004 Attorneys for Real Parties In Interest and Respondent, Y.T. WONG and SMI CONSTRUCTION,INC. TABLE OF CONTENTS TABLE OF CONTENTS............cccsseeccccecsseeeecssseuescceeecccc, TABLE OF AUTHORITIES.............cceeecceccsceeeescesueteeccccsccs. ISSUE PRESENTED FOR REVIEW ............cecccsceecceceesccceecss INTRODUCTION 0000.0... ceccccceseeccccccueceeecseausueseseeececscss. REASONS REVIEW SHOULD BE GRANTED..........00060-...... FACTUAL AND PROCEDURALHISTORY..........0...0000.065... A. Summary ofFacts 0.0.0... ccccceeccceccseeeseeeseueseseeceeecss. B. Procedural History ...........0..0ccccccccesteccseeeesececuececccccee, LEGAL DISCUSSIONuu... ccc cccccceccceceeeeeeeceseueeceecccsee. A. The Court of Appeal’s OpinionIs In Direct Conflict With the Hines Opinion, Creates An Exception Contrary To the Plain Language In Public Resources Code Section 21177, and Misapplies the HoldingsIn Azusa ..........ccecccceseeecccsececeeee, 1. The Court ofAppeal’s Opinion Directly Conflicts With Its Own Decision In Hines v. California Coastal Commission (2010) 186 Cal.App.4th 830 wo... eee ceeecccceueeeeecce, The Judicially Created Exception To the Exhaustion ofAdministrative Remedies Statute Violates the Plain Language of Section 21177 ..............ccessessesssssesessesoscceees Supreme Court Review Is Necessary To Determine Whether the Holding In Azusa Applies To CEQA Exemption Determination Cases Where There Was Opporotunity To Raise the CEQA Noncompliance Issue During Public Comment Period Or At Public Fearingoo...esessesssssesessssssscsssessesssscasassvsssesesescescese, ég a o O ili 12 12 12 15 18 B. The Court’s Exhaustion Analysis Is Contrary To Well Established Public Policy That Public Agencies Be Given An Opportunity To Respond To Issues Before Resorting To Judicial Review 20.00... .....ccceceecceceeccececcesueescceeccccecee. 1. Exhaustion Doctrine Is a Prerequisite To Allow Public Agency Opportunity to Review Issue, Act On It and Perhaps RenderLitigation Unnecessary ..................... 2. The Court of Appeal’s Decision Based On the Merits of the Infill Exemption Argument(i.e., How the County Could Have Responded To Tomlinsons’ Argument HadIt Been Made) Swallowsthe “Prerequisite” Exhaustion of Administrative Remedies Requirement ........................ C. The Court’s Opinion Errs In Fact and Law By Concluding That the County’s Hearings Were Not Sufficient To Invoke the Exhaustion of Administrative Remedies Requirement «0.0.0.0... ceecccccceeceecccseueeeeseuesesssuneeseccecss. CONCLUSION 1.00... cceesessssnssssseeseeneeneeesesseseetercesccee. CERTIFICATE OF WORD COUNT 0.0.0.0... ccceeccccccccceeecececcecc. li é& oO 22 22 24 25 28 29 TABLE OF AUTHORITIES California Cases Azusa Land Reclamation Company, Inc. v. Main San Gabriel Basin Watermaster, et al. (1997) 52 Cal.App.4" 1165 oo... ececcecccceecsccceeseceesececccc. City ofSacramentov. State Water Resources Control Bd (1992) 2 Cal.App.4th 960 0...ccc esececseeeeeessseuenerereecece, Coalitionfor Student Actionv. City ofFullerton (1984) 153 Cal.App.3d 1194 woo. ccseeeeccececscccccceceece, Hines v. California Coastal Commission (2010) 186 Cal.App.4th 830 oo... eeccsseescesecccceeeeecce. Mani Bros Real Estate Groupv. City ofLos Angeles (2007) 153 Cal.App.4th 1385 0.2.0... ccecccccsessecseseeseceeecc.. Porterville Citizensfor Responsible Hillside Developmentv. City ofPorterville, et. al. (2007) 157 Cal.App.4th 885 00.0... ceccccccessssseeeeeececc. Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal. App. 3d 886 oo... .oc ieee cceeccccccsscueesecceecs. California Statutes Public Resources Code Section PASTSC) 21152(8)ooce cc eccecesevevecsecesces 21167 occcc accecccaseusececescess 21167(d) oo... ccc ecceceecececceseecces QV1T7 Lecce ec cccecasaseesusecercecces Q1177(a) oo. eee ce ec ccceseecevececeecces QLITI(C) voececcecsececessecsseesecessceeeess ili Page(s) passim 20 21,22 passim 22 25 23 Page(s) 18 18 13,14,19 14 passim 15,16,17, 18,26, 17 TABLE OF AUTHORITIES(Cont'd) California Regulations Page(s) CEQA Guidelines (California Code of Regulations, Title 14) Section 15062... ccc ceccececeseeeecceaseseneuases 17,18 15303(@) ...... cece ececsecececncesesececuceseess 21 15332 ooo. ececeseccsseecececeeasencueecess 6,7,8,18, 21 15332(D) 2.2... cece ec eeeccseecnceccaseusececes 9 California Rules of Court Page(s) Rule 8/SO0(D)(1) ..0.. ec ceeccceccceecceececcucsecseuctersecencece. 3 iv IN THE SUPREME COURT OF CALIFORNIA FRED AND D’ARCY TOMLINSON,individuals, Petitioners and Appellants, V. COUNTY OF ALAMEDA, BY AND THROUGH THE BOARD OF SUPERVISORS;and DOES 1 THROUGH20, Defendant and Respondent, Y.T. WONG, SMI CONSTRUCTION,INC., AND DOES21 THROUGH30,inclusive, Real Parties In Interest and Respondent. PETITION FOR REVIEW BY REAL PARTIES IN INTEREST AND RESPONDENTS, Y.T. WONG AND SMI CONSTRUCTION,INC. To the Honorable Chief Justice Ronald M. George and the HonorableAssociate Justices of the California Supreme Court: The real parties in interest and respondents, Y.T. Wong and SMI Construction, Inc. (hereafter collectively referred to as “Real Party’) respectfully petition for review of the published opinion by the Court of Appeal, First District, Division Five, in Tomlinson,etal. v. County of Alameda,et al. (October 6, 2010, A125471) (hereafter “Opinion”), a copy ofwhich is attached hereto as Exhibit A, and presentthe following issue for consideration by this Court. ISSUE PRESENTED FOR REVIEW Whetherthe requirement in CEQA that a petitioner exhaust administrative remedies (Pub. Res. Codesection 21 177) applies when the public agency holdsduly noticed public hearings on a project and concludes that the project qualifies for a CEQA exemption. INTRODUCTION Appellants herein, Fred and D’Arcy Tomlinson (“Tomlinsons”) broughtthis petition challenging the County ofAlameda’s (“County”) approval ofan 11-homesubdivision in the urban Fairview area ofAlameda County. Tomlinsonsarguedtothetrial court that the County did not comply with the California Environmental Quality Act (“CEQA”) and misapplied an exemption therein. The County and Real Party arguedthat Tomlinsonswere precluded from raising an issue of noncompliance with CEQAbecausetheyfailed to raise the issue in any of the numerous publically noticed hearings, thus failing to exhaust their administrative remedies. The trial court agreed and denied the petition. Tomlinsons appealed. The First Appellate District, Division Five, reversed, concluding Tomlinsons were not required to show that they had exhaustedtheir administrative remedies before seeking judicial review. This conclusion wasparticularly unexpected bytheparties in light of the fact that Tomlinsons concededin their appellate briefs that they were required to exhaust their administrative remedies and argued that they did do so. The matter was further complicated when anotherdivision ofthe First Appellate District issued an opinion holding that showing exhaustion of administrative remedies was required as a prerequisite to challenging a public agency’s determination ofa categorical exemption under CEQA. This opinion directly conflicts with the opinion for which review is sought herein. Theconflict in these opinionscreates significant uncertainty about important law affecting every public agencyin the State of California that is required to comply with CEQAandthe public in general. REASONS REVIEW SHOULD BE GRANTED The California Supreme Court may order review of a Court of Appeal decision “[w]hen necessary to secure uniformity of decision orto settle an important question of law.” California Rules of Court, Rule 8/500(b)(1). Review is warranted here for both reasons. The First District Appellate Court’s opinionis in direct conflict with Hines v. California Coastal Commission (2010) 186 Cal.App.4" 830 (“Hines”), issued by a different panel ofthe First District, The Hines court waspresented with the same issue as Tomlinson, but reached the opposite conclusion, holdingthat petitioners were barred by the exhaustion doctrine from raising the CEQA noncomplianceclaimsforthefirst time on judicial review of a determination that the challenged project was exemptfrom CEQA. Just as in Tomlinson, petitioners in Hines had ample opportunities to raise their CEQAclaimsat public hearings butfailed to doso. Review by the Supreme Court is necessary to ensure a unified approach to exhaustion of categorical exemption cases not only in the First District Court ofAppeal but also throughoutthe State. The Court ofAppeal’s opinionis also contrary to the longstanding public policy expressed in a longline of cases discussing the purpose behind the exhaustion of administrative remedies requirement ~ to allow a public agency the opportunity to review and address any issues arising under that agency’s specific area of expertise, and render litigation unnecessary. The issue of whethera party is required to satisfy the exhaustion of administrative remedies requirement when appealing a public agency’s CEQA exemption determinationis ofcritical importance to every city and county in the state, as well as the public in general, because further clarification is necessary regarding the jurisdictional requirementthat a petitioner mustfirst exhaust before judicial review maybe sought on a CEQA exemption determination. Review should be granted because the Appellate Court’s decision here has carved out a major exceptionto the exhaustion requirementnotcodified in Public Resources Code §21177 by holding, in essence, that the requirement doesnot apply in matters where the public agency ultimately determinesthe project is exempt from CEQA, irrespective of whetheror notpetitioners had opportunities to present the noncompliance issue at public hearings or at public comment period. Real Party also contends that the Appellate Court misinterpreted the Fourth District Appellate Court’s decision in Azusa Land Reclamation Company, Inc. v. Main San Gabriel Basin Watermaster, et al. (1997) 52 Cal.App.4" 1165 (“Azusa”), extending the Azusa holding well beyondthe facts in that case. Real Party contends that Azusa should be more narrowly construed. Thisissue is ripe for final resolution by the Supreme Court in that only the highest court can resolve the conflict between the inconsistent opinionsin Hines and this case. Further, a grant ofreview would provide the Supreme Court an opportunity to clarify the applicability of the holding in Azusa in CEQA exemption determination cases where public hearings are held or opportunity existed for petitioners to presenttheir objections. In orderfor this importantissue to be resolved, Real Party respectfully requests that the Supreme Court grant review. /// // 1 /// FACTUAL AND PROCEDURAL HISTORY A. SUMMARYOFFACTS On or about August 18, 2006, Real Party submitted an application to the Planning Departmentat the County ofAlamedaforthe construction of a single-family subdivision (“the Project”) in the area known as Fairview. (AR 2:290.)' The Projectsite is located in a single-family residential area of unincorporated Alameda County. Real Party sought to merge twoparcels into one parceltotaling 1.89 gross acres (AR 1:34) andto subdivide the merged parcel into 11 buildable lots, each to be developed with a single-family home. (AR 1:47.) Real Party worked for approximately two yearsto comply with all requests of the various municipal and county agencies. (AR 1:185 .) Real Party also retained qualified professional consultants, including architects, civil and soils engineers, arborists, biologists, and archeological andhistorical consultants to addressall requirements from the Planning Department. (AR 1:185-186.) On or about July 2, 2007, the County Planning Department prepared a Preliminary Plan Review report and determined that the Project was exempt from CEQA underthe “infill exemption” (CEQA Guidelines, Title 14, Code of Regulations § 15332) because“the proposed ' AR 2:290refers to page 290 of Volume 2 of the Administrative Record lodged with the court. The preceding zeros on the page numbers have been eliminated from all AR citations. development would occurin an established urban area, would not significantly impacttraffic, noise, air or water quality, and could be served by requiredutilities and public services.” (AR 1:34-46.) Despite finding that the Project qualified as an in-fill development under Section 15332, the Planning staff evaluated the Project in termsofits environmental impact per CEQA. (AR 1:34-40, 62.) The Preliminary Plan Review clearly indicated that the Planning staff carefully considered the residential density of the Project, as well as traffic and parking concerns, before recommendingapprovalofthe Project. (AR 1:38-46.) After describing the findings and determinationsofthe Planning Department, the concerns expressed bythe neighbors aboutthe loss of view, potentialtraffic and parking problems, and the loss oftrees on the property, the Planning Department recommendedthat the Planning Commission approve the Project. (AR 1:54-63.) At the noticed public hearing of the Planning Commission held on July 2, 2007, Tomlinsons repeatedly indicated that their main concern was the loss of view from their property. (AR 1:72, 78, 102.) No mention was ever made, by either Tomlinsonsor anyoneelse,that the Project may not comply with the definition of “in-fill exemption” under CEQA § 15332. The Planning Commission then continued the hearing for revision and consideration to December 17, 2007. (R1 :69-74.) During the December17, 2007 hearing,andafter informing the Planning Commission that the Project qualified asinfill for CEQA purposes, the Planning staffpresented a detailed responseto the comments received by Tomlinsons and their neighbors, thereafter concluding that lot sizes of the Project were consistent with the surrounding neighborhood. (AR 1:121.) Tomlinsons again complained that the Project would impact views, drainage, andcreate traffic and parking issues. (AR 1:135.) Asbefore, neither Tomlinsons nor anyone else challenged the County’s determination that the Project met the “in-fill exemption” under CEQA § 15332. Tomlinsons made general references to environmentalreview,but only in the context ofthe Specific Plan. (AR 1:134.) On or about December 17, 2007, after completing the public hearing, the Planning Commission determinedthat the Project was“Categorically Exemptpursuant to Section 15332 (In fill Development)” ofCEQA and that it complied with the applicable zoning ordinance requirements. (AR 1:1.) The Planning Commission unanimously approvedthe Project. (AR 1:186-187.) On or about January 9, 2008, Tomlinsons appealed the Planning Commission’s decision to the County of Alameda Board of Supervisors. Tomlinsonssenta letter to the Planning Department expressing the two areas of concern for appeal — i.e., traffic and residential density. (AR 2:384-387.) Additional letters expressing concerns regarding the traffic and residential density were sent to the Board on or about February 7, 2008 by neighbors of the Project. (AR 2:405-418.) The Board of Supervisors heard Tomlinsons’ appeal on April 8, 2008. Tomlinsons only presented unsubstantiated Opinions, concerns and/or suspicionsrelating to their concerns abouttraffic and density. At no time during the hearing on appeal did Tomlinsons or anyone else challenge the County’s application ofthe infill exemption. At the endofthe hearing, the Board of Supervisors denied Tomlinsons’ appeal and approvedthe project consistent with the findings of the Planning Commission. (AR 1:16-18.) B. PROCEDURAL HISTORY Tomlinsons appealed the Board of Supervisors’ approvalofthe project by filing their Petition for Writ ofMandatein thetrial court below. Afterthe hearing on Tomlinsons’ Petition for Writ of Mandate, the trial court issued an order denying Tomlinsons’ petition and,in summary, determined that: there was nobasis to reverse County’s determination that the proposeddensity for the Project complies with the applicable general and specific plans (see Appellants’ Appendix, Vol. 2, page 401-407 [AA 2:401-407]); Tomlinsons failed to exhaust their administrative remedies byfailing to object that the Project was notto be built “within city limits” under CEQA Guidelines § 15332(b), and therefore were precluded from raising this issue for the first time on appeal (AA 2:409-412); Tomlinsons failed to present substantial evidenceto raise a fair argumentthat the Project will have a significant effect on the environment due to unusual circumstances (CEQA Guidelines § 15300.2) (AA 2:412-42 1); and, finally, the conditions included in the County’s approvalofthe Project do not function as a mechanism to bring the Project within an exemption and, therefore, the rule against “mitigating into an exemption”did not apply (AA 2:42 1-425). Apparently, dissatisfied with thetrial court’s decision, and continuing on their “not in my back yard” mission to prevent the project from going forward at any cost, Tomlinsonsappealed thetrial court’s order. On March3, 2010, after review ofthe briefs submitted by the parties and the administrative record, andpriorto the oral arguments on appeal, the First Appellate District requested additional briefing from the parties on the following issues: “(1) If this court determinesthat the project’s alleged noncompliancewith the exemption’s “within city limits” criterion was not presented at the administrative level, does section 21177 preclude appellants’ assertion ofthis ground of noncompliance in this action? (2) Maythis court consider whether section 21177 required assertion ofthe project’s alleged noncompliance with the “within city limits” requirementat the administrative level, in light of appellant’s failure to raise this issue in their briefing on appeal and their concessionsin thetrial court that they “do not claim that the potential exception [set outin Azusa] applies . . . [and] readily acknowledgethatsince the County held a hearing, [they] had a duty to exhaust.” 10 OnApril 15, 2010, the parties presentedtheir oral arguments before the First Appellate District. On June 18, 2010, the Court ofAppealfiledits original opinion reversing thetrial court’s order denying Tomlinsons’ petition for writ of mandate, and remanding the matterto the trial court with instructions to issue a writ ofmandate directing the Countyto setasideits decision approving the proposed subdivision and to comply with the requirements of CEQAwhen reconsidering approval of the proposed subdivision. OnJuly 14, 2010,afterfiling its petition for rehearing, respondent Countysenta letter to the Court ofAppeal advising it of a recent changein the publication status ofHines v. California Coastal Commission (A125254, June 17, 2010), which wasnot originally certified for publication prior to the Court ofAppeal original decision in this matter. On July 19, 2010, the Court ofAppeal denied respondent County’s petition for rehearing but, instead, issued an order granting rehearing onits own motion and requested additionalbriefing on the following issue: “How does Hines v. California Coastal Commission (A125254, June 17, 2010) impact the court’s holding,in light ofAzusa Land Reclamation Co. y. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, that ‘[Public Resources Code] section 21177 does not bar Tomlinsons from challenging the County’s exemption determination on the groundthat the proposed subdivision is not ‘within city limits.’ (See Azusa,at p. 1209 11 [holding section 21177 does notapply in actions challenging an agency’s exemption determination].” After review ofthe parties’ additional briefing, the Court ofAppeal reiterated its prior decision by filing its October 6, 2010 opinion holding, in part, that the exhaustion of administrative remedies requirementdoesnot apply in the action herein and, therefore, Section 21177 does notbar Tomlinsonsfrom raising their CEQA noncomplianceissue on the ground that the project cannot comply with the “within city limits” requirement of the in-fill categorical exemption. LEGAL DISCUSSION A. THE COURTOF APPEAL’S OPINIONIS IN DIRECT CONFLICT WITH THE HINES OPINION, CREATES AN EXCEPTION CONTRARYTO THE PLAIN LANGUAGEIN PUBLIC RESOURCES CODE§ 21177, AND MISAPPLIES THE HOLDINGINAZUSA. 1. The Court of Appeal’s Opinion Directly Conflicts With Its Own Decision In Hines v. California Coastal Commission (2010) 186 Cal.App.4"830. The Court ofAppeal’s decision directly conflicts with another decision certified for publication by Division Twoofthe same court in Hines v. California Coastal Commission (2010) 186 Cal.App.4™ 830 (review denied October 13, 2010). In Hines, supra, the First Appellate District held “that appellants “failed to exhaust their administrative remedies... by failing to raise any issue regarding the purported violation 12 ofCEQA before the county at any stage, despite ample notice that county staff considered the project exempt and several opportunities ... to raise any objection or argument with respectto the categorical exemption. (§21177, subd. (a).)” Hines v. California Coastal Commission, supra, 186 Cal.App.4" at 852-853. After considering the holding ofAzusa Land Reclamation Company v. Main San Gabriel Basin Watermaster, supra, the Second Division ofthe First Appellate District Court held in Hines as follows: “’Exhaustion of administrative remediesis a jurisdictional prerequisite to maintenance of a CEQAaction.’... That requirementis satisfied if ‘the alleged groundsfor noncompliance with [CEQA] were presented...by any person during the public commentperiod provided by [CEQA]or prior to the close of the public hearing on the project before the issuance ofthe notice of determination.’” Jd., at p. 853. The Hines court concludedthat section 21177’s exhaustion requirementapplies whenthere are public hearings that include environmental review, ample notice of such hearingsis given notifying the agency’s reliance on the exemption, and the public does notraise an objection to the exemption despite an opportunity to do so. Hines, supra, at pp. 852-855. Similar to the case before this Court, the Hines court determined that “there was ample notice before the multiple public hearings held with regard to the project that it was considered underthe ‘Class 3° 13 categorical exemption provision of Regulation § 15303, subdivision (a) (new single-family residence). Id., at p. 854. The Court ofAppeal’s decision here should be consistent with the decision in Hines, supra, given the similar facts and circumstances. In Hines, supra, the County issued several notices to appellants and other neighbors oftheir determination that the project was categorically exempt from CEQA. Id., at p. 836-839. Appellants spoke at public hearings. Despite making claims of other nonconformities, appellants made no claim about the determination that the project was exempt under CEQA. Following another public hearing, the Board of Supervisors approvedthe project after determining, amongotherthings, that the project was categorically exempt from CEQA. The appellants in Hines, supra, again appealed the County’s decision to the California Coastal Commission, Following yet another hearing at which appellants spoke, the Coastal Commission followed the recommendationofits staff, and unanimously determinedthat the appealdid not giverise to a “substantial issue.” Jd. Appellantsfiled a petition for writ ofmandate. Trial court denied the petition. Jd. Even though the Court ofAppeal’s opinion here acknowledgedthat the Hines case involved facts and “circumstances similar to those presented here,”’ the court nevertheless concluded, without explanation, that “[t]he court’s holding in Hines doesnotalter its conclusion under Azusa that 14 section 21177’s exhaustion requirementhas no preclusive effect in this case.” (Opinion, at p. 1422.) Supreme Court review is necessary to resolve the direct conflict between the appellate decision in Hines and the Court ofAppeal opinion herein. 2. The Judicially Created Exception To the Exhaustion of Administrative Remedies Statute Violates the Plain Language of Section 21177. Despite the plain languagein the statute, and agreementbyall parties that the exhaustion of administrative remedies under Section 21177 applies in this action, the First District Court ofAppeal reached a contrary conclusion by holding that Section 21177 does not apply to bar Tomlinsons’ objection to the County’s determination that the projectis exempt from CEQA. (Opinion,p. 1417-1424.) In support ofits decision, the Court ofAppeal ignoredall prior decisions relating to the exhaustion of administrative remedies requirement. Instead, the Court ofAppeal wholly relied on the Fourth District Court ofAppeal decision in Azusa Land Reclamation Company v. Main San Gabriel Basin Watermaster, supra, and unfairly extended Azusa on the assumptionthat a project that complies with CEQAthrough a categorical exemption never has public hearings. Public Resources Code § 21177(a) expressly providesas follows: Cited page numbersin Opinionrefer to the page numbersin the California Official Report (Exhibit A). 15 “(a) No action or proceeding may be broughtpursuantto 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 providedby this division or prior to the close ofthe public hearing onthe project before the issuance ofthe notice of determination.” (Public Resources Code § 21 177(a); emphasis added.) Based ontheplain language of Section 21177(a), the exhaustion of administrative remedies doctrine is a prerequisite to any action claiming noncompliance with CEQAifthere is a public hearing (or public hearings, in this case) or other opportunity for public comment prior to the public agency’s decision regarding project approval. Public Resources Code § 21177(a). In enacting Section 21177, the Legislature sought to expressly preclude an action based on noncompliance with CEQAifthe petitioner had an opportunity to presentthat issue to the public agency during the public commentperiodor at a public hearing, but failed to do so, even if that action wasfiled within the statute oflimitations period under Public Resources Code § 21167 (subsection (d) requires an action or proceeding to be commenced within 35 daysfrom thefiling of a notice of exemption by the public agency, or 180 days from the public agency’s decision to carry out or approve the project). (Public Resources Code § 21 177(a).) Section 21177 does not provide an exception to the exhaustion requirementexcept in instances where“there was nopublic hearing or other 16 opportunity for membersofthe public to raise these objections orally or in writing prior to the approvalofthe project, or if the public agencyfailed to give the notice required by law.” (Public Resources Code § 21177(e).) In concluding that Section 21177 doesnot apply in the matter at hand,the First District Court ofAppeal’s opinion herestates as follows: “In Azusa, supra, 52 Cal.App.4" at page 1209,the court held that the doctrine of exhaustion of administrative remedies doesnot apply in actions challenging an agency’s exemption determination. The court noted that under the statute’s own terms, the exhaustion requirement established by section 21177 applies only ‘where (1) CEQAprovides a public commentperiod, or (2) there is a public hearing before a notice of determinationis issued.’ (Azusa, at p. 1210.) CEQA does not provide for a public comment period before an agency makes an exemption finding, and there is no ‘public hearing ... before the issuanceofthe notice of determination’ because this documentis neverfiled if the agency declares an exemption. (/bid.) Accordingly, ‘[t]he only prerequisite to an action challenging an exemption determinationis thatit be brought within 180 days of the date ofthe final decision of the agency. (Guidelines, § 15062, subd. (d).)’ (Citations omitted.)” (Opinion,p. 1418-1419; citations omitted.) Asindicated above, the appellate court herein and the Azusa court both assumeincorrectly that a project exempt from CEQAneverinvolves public hearings. As clearly indicated by the facts in Hinesv. California Coastal Commission (2010) 186 Cal.App.4" 830, andthe facts of the instance case, the aforementioned assumptionis incorrect. The Court ofAppeal muddlesits interpretation of Section 21177(a) and Azusa by overlookingthefact that a “notice of exemption”is simply 17 one form of a statutory notice of determination. In footnote 11 of the Court of Appeal’s opinion, the court understoodthat [u]nder CEQA,the term ‘notice of determination’ in Section 21177(a) refers to a document an agency must file ‘[w]henever[it] approves or determinesto carry out a project thatis subject to this subdivision [CEQA]....’ (Public Resources Code §§ 21108, subd. (a), 21152, subd.(a).)” But the court misses the fact that 21108(b) and 21152(b) refer to the very samenotices of determination that an exemption applies. Each is a notice of determination. The Tomlinson court picks up the phrase “notice of exemption” from the Guidelines (CEQA Guideline § 15062), andtries to draw a distinction between a notice of exemption and a notice of determination, but the statute supports nosuch distinction. Real Party believes that the court’s confusion with the meaningofthe aforementioned termshasledto its erroneous interpretation of Section 21177 and Azusa. 3. Supreme Court Review Is Necessary To Determine Whether the Holding In Azusa Applies To CEQA Exemption Determination Cases Where There Was Opportunity To Raise the CEQA Noncompliance Issue During Public CommentPeriod Or At Public Hearings. RealParty further contends the Court ofAppeal’s opinion misapplies the holding in Azusa, supra. The holding in Azusa, supra, must be understoodin light of that court’s finding that there was no public comment periodor public hearing for purposes of Section 21177 because 18 the exemption determination was made simultaneously with the project’s approval. Azusa, supra, 52 Cal.App.4" 1165, 1210. The Azusa decision, whichreiterated the legislative prerequisite that “the exhaustion requirement applies where: (1) CEQA provides a public commentperiod, or (2) there is a public hearing before a notice of determination is issued,” was predicated on the court’s finding that there was no public commentperiod or public hearing prior to the agency’s determination, thus triggering the exhaustion of administrative remedies exception underSection 21177(e). Azusa, supra, 52 Cal.App.4" at p. 1210. The Azusa court determined that, where an agency approves a project and simultaneously decidesthat the project is exempt from CEQA, “there is no ‘public hearing . . . before the issuanceofthe notice of determination.” Azusa, supra, 52 Cal.App.4" 1165, 1210. The Azusa court held that respondenttherein was estopped from arguingthat the water agencies failed to exhaust the administrative requirements “because the Regional Board declaredthat the project was exempt from CEQA,there was no ‘public comment period provided by [CEQA]’andthere was no ‘public hearing... before the issuance ofthe notice of determination.” Jd The Azusa court also notedthat the language in Section 21177 requiring that the alleged grounds for noncompliance must have been presented “during the public commentperiod provided by this division or priorto the close of the public hearing on the project before the issuanceofthe notice 19 of determination”was not added until 1993, years after the Regional Board’s 1986 finding that the landfill was subjectto the “ongoing project” exemption under CEQA.Id. The Azusa court further determined that “[w]hether a party has exhausted its administrative remedies ‘in a given casewill depend upon the procedures applicable to the public agency in question.’” Id. , at p. 1211; citing City ofSacramento v. State Water Resources Control Bd. (1992) 2 Cal.App.4" 960, 969. Despite reaching the conclusion early in its opinion that the exception to the exhaustion requirementapplied, the Azusa court nevertheless made the factual determination that “[e]venifrespondents had to challenge the exemptionfiling administratively, they clearly did so here” by seeking the respondent’s review of the Regional Board’s finding that the categorical exemption applied. Jd., at p. 1211. The facts in the case hereare clearly distinguishable from the facts in Azusa, supra. This action does not involve a public agency’s approval of a project simultaneous with the agency’s determinationthat the project is categorically exempt from CEQA.In fact, it has been well established in the administrative record that, prior to the Planning Commission’s approval of the project, the County’s Planning Departmentheld at least two separate hearings permitting the public to comment specifically on the Preliminary Plan Review reports prepared by the Planning Department dated July 2, 20 2007 and December 17, 2007, which included a determination that the project was exempt from CEQAunderTitle 14 of Code of Regulations, Section 15332 “In-fill Development.” Subsequentto the public comment hearings, a formal public hearing was held on April 8, 2008 on Appellants’ appeal to the County Board of Supervisors. The Azusa court’s holding that “[t]he only prerequisite to an action challenging an exemption determinationis that it be brought within 180 days of the date offinal decision of the agency” must be construed strictly based on the distinct set of facts in that case and on that court’s finding that the exception to Section 21177 applied. To give the Azusa decision a broaderinterpretation would defeat the plain language ofSection 21 177(e) and well-established purposefor the exhaustion of administrative remedies doctrine,i.e., to give the public agency an opportunity to receive and respondto articulated factual issues and legal theories beforeits actions are subjected to judicial review. Coalitionfor StudentAction v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198. The Azusa decision cannotbe interpretedto hold that an assertion of noncompliancecan be raised forthe first time uponfiling a petition in superior court so long asthe action is brought within the statute of limitations period of Section 21167. That interpretation would defeat the intent of the exhaustion doctrine and would renderthe language in Section 21177 meaningless. Further, such a reading wouldcarveout a substantial 21 exception to the doctrine by allowing objecting parties dissatisfied with the public agencies’ exemption determination to simply raise the CEQA noncompliance groundsfor thefirst time uponfiling ofa petition. Based onthe above, Supreme Court review is necessary to determine whether the Azusa holding applies to public agency exemption determinations where there was opportunity to raise the CEQA noncompliance issue during public commentperiodor at public hearings, and, if so, whether the Court ofAppealapplied the Azusa decision correctly. B. THE COURT’S EXHAUSTION ANALYSIS IS CONTRARY | TO WELL ESTABLISHED PUBLIC POLICY THAT PUBLIC AGENCIES BE GIVEN AN OPPORTUNITY TO RESPOND TO ISSUES BEFORE RESORTING TO JUDICIAL REVIEW. 1. Exhaustion Doctrine Is a Prerequisite to Allow Public Agency Opportunity to Review Issue, Act On It and Perhaps Render Litigation Unnecessary. The fundamentalpolicy behindthe exhaustion doctrineis to afford public agencies and other affected parties an opportunity to receive and respondto articulated factual issues and legal theories, to allow the public agency an opportunity to act before its actions are subjectedto judicial review, and to renderlitigation unnecessary. Coalitionfor Student Action v. City ofFullerton (1984) 153 Cal.App.3d 1194, 1198; Mani Bros Real Estate Group v. City ofLos Angeles (2007) 153 Cal.App.4th 1385, 1394. 22 “The essence ofthe exhaustion doctrineis the public agency’s opportunity to receive and respondto articulated factual issues and legal theories before its actions are subjected to judicial review.’ (Citations omitted.) By presenting the issue to the administrative body,the agency ‘will have had an opportunity to act and renderthelitigation unnecessary.’ (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal. App. 3d 886, 894.)” Azusa, supra, at p. 1215. The Azusa court acknowledgedthat “[{iJn enacting Public Resources Code section 21177, the Legislature said that‘It is the intent of the Legislature in adding Section 21177 . . . to codify the exhaustion of administrative remedies doctrine.It is not the intentto limit or modify any exception to the doctrine of administrative remedies containedin case law.’ (Stats. 1984, ch. 1514, § 14.5, p. 5345.) Real Party contends that, had Tomlinsonspresentedthe CEQA noncompliance claim at the one ofpublic hearings, the County would have had an opportunity to consider whetherthe categorical exemption was correctly applied. The Court ofAppeal’s decision allows,in essence, for parties seeking to derail an approved project to simply wait while public hearings are completed, then raise an exemptionissueforthefirst time in a judicial proceeding. This is directly contrary to the fundamentalintent and policy of the exhaustion doctrine. 23 2. The Court Of Appeal’s Decision Based On the Merits Of the Infill Exemption Argument(i.e., How The County Could Have Responded To Tomlinsons’ Argument HadIt Been Made) Swallows the “Prerequisite” Exhaustion Of Administrative Remedies Requirement. In its opinion, the First District Court ofAppeal erroneously reverses the “prerequisite” analysis of determining whetherthe exhaustion requirement was met and,instead, looks at the merits of the case before deciding that the exhaustion requirement doesnot apply here. The opinion states as follows: “The doctrine of exhaustion of administrative remedies ‘prevents courts from interfering with the subject matter of anothertribunal’ by giving the agency an opportunity to respondto factualissues and legal theories within its area of expertise beforeits actions are reviewed by a court. (Citation omitted.) The exhaustion requirementalso ‘facilitates the development of a complete record that draws on administrative expertise and promotesjudicial efficiency.’ [Citation.] It can serve as a preliminary administrative sifting process[citation], unearthing the relevant evidence and providing a record which the court mayreview. [Citation.]’ (Citations omitted.) The point the Tomlinsons purportedly failed to raise here — that the project would not occur ‘within city limits’ — does notimplicate the County’s particular expertise and does not require an evidentiary determination. Indeed, the fact on whichit turnsis undisputed, and the County conceded at oral argumentthatit had not been deprived of an opportunity to offer evidenceofthis fact. With these policy implications in mind, we follow the lead in Azusa in holding that section 21177 doesnot bar the Tomlinsons from challenging the County’s exemption determination on the groundthat the proposed subdivisionis not ‘within city limits.’” (Opinion, at p. 1419-1420.) 24 The Court ofAppeal’s opinion constitutes a profound departure from well-established California exhaustion of administrative remedies law whichplaces the burden on the petitionersto first establish that they exhausted administrative remedies. Porterville Citizensfor Responsible Hillside Developmentv. City ofPorterville, et al. (2007) 157 Cal.App.4th 885, 909-910. C. |THE COURT’S OPINION ERRSIN FACT AND LAW BY CONCLUDING THAT THE COUNTY’S HEARINGS WERE NOT SUFFICIENT TO INVOKE THE EXHAUSTION OF ADMINISTRATIVE REMEDIES REQUIREMENT. The Court ofAppeal’s opinion concludes in a footnote that the public hearings held before the County ofAlameda Planning Commission and County Board of Supervisors were not sufficient to invoke the exhaustion requirement of Section 21177. (Opinion,at p. 1419, fn. 8.) This conclusion is erroneous both in law andfact. Here, the administrative process clearly met the public hearing requirements under Section 21177, Azusa and Hines. The facts in Azusa are distinguishable from the facts in this case because that court found that there was neither a public commentperiod nor public hearing prior to the agency’s determination, so the obligation to exhaust administrative remedies was nevertriggered. The Azusa court determinedthat“there is no ‘public hearing . . . before the issuance of the notice of determination” 25 where an agencyapprovesa project and simultaneously decidesthat the project is exempt from CEQA. Azusa, supra, 52 Cal.App.4” 1165, 1210. In contrast, the Hines court held that the exhaustion requirement of section 21177 was invokedsince the county issued several notices to appellants and other neighborsofits determination that the project was categorically exempt from CEQAandthe appellants spoke at public hearings. Hines, supra, at p. 854-855. Following another public hearing, the Board of Supervisors approvedthe project after determining, among other things, that the project was categorically exempt under CEQA. The appellants in Hines again appealed the County’s decision to the California Coastal Commission. Yet, despite multiple opportunities, appellants failed to raise the CEQA noncomplianceissueprior to seeking judicial review. Here, the overwhelming evidence in the record demonstrates that the hearings held in this matter far exceeded the standards of Section 21177 and Azusa, and were sufficientto trigger the exhaustion requirement under Section 21177 (a). The County planning departmentstaff report dated July 2, 2007 specifically stated that the project wascategorically exempt from the requirements ofCEQA underCalifornia Code of Regulationssection 15332 becauseit qualified s an in-fill developmentproject. (AR 1:35) County staff repeated this information at the Planning Commission hearing held on December 17, 2007. (AR 1:121.) The Planning Department and Planning Commission invited the public on at least two separate occasions 26 to commentonits initial determination that the Project was categorically exempt as an “in-fill development.” Tomlinsons availed themselves of, and actively participated in, the public commentandpublic hearing proceedings by expressing concernsregarding the Project’s impact on traffic and parking, and evenits impact on wildlife habitat, but failed to raise any objection regarding the “within city limits” requirement of the exemption. (AR 1:133.) The County andits agency engaged in an open dialogue with membersofthe public by accepting and responding to e-mails from Tomlinsonsandtheir neighbors. Tomlinsonsraised every possible argument in an attempt to take the Project out ofthe “in-fill development” exemption,but failed to raise any issue regarding the “within city limits” requirement. On April 4, 2008,prior to the Board of Supervisors’ hearing the appeal, Tomlinsonssent an e-mail to County staffwherein they directly quote the language from California Code ofRegulations section 15332, but did not raise any concern with the County’s use ofthe infill exemption based on the Project location within city limits. On April 8, 2008, at the Board of Supervisors’ hearing on the matter, Tomlinsons again made comments on the record but never once raised the Project’s exemption status based oncity limits. (AR 1:178.) In sum,the facts described above and in Hines distinguish this case from Azusa. As Hines demonstrates, the distinction between an opportunity 27 to address use of a categorical exemption on a regularly scheduled agenda item with no public hearing and no advancenotice of the proposed categorical exemption use(the facts in Azusa) and an opportunity to address the use of a categorical exemptionat a properly noticed public hearing where the decision-making body hasspecifically noticedits proposeduse ofthe categorical exemption(the facts in the present case and Hines)is critical. Thus, the Court ofAppeal’s approach to distinguishing Azusa does not conform to the law as articulated in Hines. Based on the foregoing, the Court ofAppeal’s opinion expressedin dictum that the public hearings afforded Tomlinsons werenotsufficient to invoke the exhaustion of administrative remedies requirement, is erroneous. CONCLUSION Forthe foregoing reasons, review should be granted in orderthat the Supreme Court can determine whether the Court ofAppealdecision should be reversed. Dated: ( /Ir/ 0 Respectfully submitted, ABDALAH LAW OFFICES A Professional Law Corporation ayLD RICHARD K. ABDALAH and MIRIAM H. WEN-LEBRON Attorneys for Respondent, RealParties in Interest, Y.T. WONG and SMI CONSTRUCTION,INC. 28 CERTIFICATE OF WORD COUNT (Cal. Rules of Court, Rule 8.504(d)(1)) I, MIRIAM H. WEN-LEBRON,herebycertify that the word count in PETITION FOR REVIEW OF REAL PARTIESIN INTEREST Y.T. WONG AND SMI CONSTRUCTION,INC.is 6,245 words. I declare under penalty ofperjury underthe lawsofthe State of California that the foregoingis true and correct. Executedthis Ad day ofNovember, 2010 in Cupertino, California. MIRIAM H. WEN-LEBRON 29 EXHIBIT A @ LexisNexis’ Page 1 1 of 3 DOCUMENTS FRED TOMLINSONetal., Plaintiffs and Appellants, v. COUNTY OF ALAMEDAetal., Defendants and Respondents; Y.T. WONGet al., Real Parties in Interest and Respondents. A125471 COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION FIVE 188 Cal. App. 4th 1406; 2010 Cal. App. LEXIS 1725 October 6, 2010, Filed PRIOR HISTORY: [**1] Superior Court of Alameda County, No. RG08396845, Frank Roesch, Judge. Tomlinson v. County ofAlameda, 185 Cal. App. 4th 1029, 111 Cal. Rptr. 3d 140, 2010 Cal. App. LEXIS 908 (Cal. App. Ist Dist., 2010) SUMMARY: CALIFORNIA OFFICIAL REPORTS SUMMARY The trial court denied a petition for a writ of administrative mandate filed by residents challeng- ing a county's decision to approve a proposed sub- division development. The proposed subdivision site was located in an unincorporated area of the county. The planning commission foundit categori- cally exempt under Pub. Resources Code, § 21080, subd. (a), from the California Environmental Qual- ity Act (CEQA) (Pub. Resources Code, § 21000 et seq.) as in-fill development pursuant to Cal. Code Regs., tit. 14, § 15332, because it was in an estab- lished urban area. The residents expressed concern about traffic issues while acknowledging the county's conclusion that the proposed subdivision was exemptas in fill. (Superior Court of Alameda County, No. RG08396845, Frank Roesch, Judge.) The Court of Appeal reversed and remanded to the trial court with instructions to issue a writ of mandate directing the county to set aside its deci- sion approving the proposed subdivision and to comply with the requirements of CEQA whenre- considering approval of the proposed subdivision. The court held that the residents’ failure to chal- lenge the exemption determination did not preclude them from raising the issue on appeal because the exhaustion requirement of Pub. Resources Code, § 21177, does not apply to an action challenging an exemption determination. Although it appeared that the residents had concededa duty to exhaust, such a concession did not have to be accepted on a pure question of law. The proposed subdivision was not exempt as in-fill development under § 15332 be- causeit was not within city limits, a phrase that the court construed as requiring that a project occur within the boundaries of a municipality. (Opinion by Jones, P. J., with Simons and Needham, JJ., con- curring.) [*1407] HEADNOTES CALIFORNIA OFFICIAL REPORTS HEAD- NOTES (1) Pollution and Conservation Laws § 1.8-- California Environmental Quality Act--Projects- -Exemptions--Effect of Categorical Exemption.-- It is state policy in California that the long-term protection of the environment shall be the guiding criterion in public decisions. The overriding pur- pose of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) is to ensure that agencies regulating activities that may affect the quality of the environment givepri- mary consideration to preventing environmental damage. To implement this policy, CEQA andits guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.) establish a three-tiered process determining the level of environmental review required. The first step of this process requires public agencies to con- duct a preliminary review to determine whether CEQAapplies to a proposed activity. If the activity constitutes a project as defined by statute, CEQA applies unless the activity falls within one of the exemptions established by the Legislature or the CEQA guidelines (Pub. Resources Code, § 21080, subd. (a)). Where a project is categorically exempt, it is not subject to CEQA requirements and may be implemented without any CEQA compliance what- soever. Accordingly, if the agency determinesthat an exemption applies, no further environmentalre- view is necessary. (2) Pollution and Conservation Laws § 2.9-- California Environmental Quality Act- Proceedings--Judicial Review--Exhaustion of Administrative Remedies.--Although the exhaus- tion requirement has been described as jurisdic- tional, a failure to exhaust does not deprive a court of fundamental subject matter jurisdiction. Properly understood, exhaustion under Pub. Resources Code, § 21177, is a statutory prerequisite for asserting a ground of California Environmental Quality Act (Pub. Resources Code, § 21000 et seg.) noncompli- ance. It is designed to give an agency the opportu- nity to receive and respond to articulated factual issues and legal theories before its actions are sub- ject to judicial review. To that end, the exact issue asserted in the trial court must have been presented to the administrative agency. The petitioner bears the burden of showing that the issues raised in the Judicial proceeding werefirst raised at the adminis- trative level. (3) Pollution and Conservation Laws § 2.9-- California Environmental Quality Act- Proceedings--Judicial Review--Exhaustion of Administrative Remedies.--The doctrine of ex- haustion of administrative remedies does not apply in actions challenging an agency's exemption de- termination. Underthe statute's own terms, the ex- haustion requirement established by Pub. Resources Code, § 21177, applies only where [*1408] (1) the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) provides a public commentperiod, or (2) there is a public hear- ing before a notice of determination is issued. CEQA doesnot provide for a public comment pe- riod before an agency makes an exemption finding, and thereis no public hearing before the issuance of the notice of determination because this document is neverfiled if the agency declares an exemption. Accordingly, the only prerequisite to an action chal- lenging an exemption determination is that it be brought within 180 days of the date of the final de- cision of the agency (Cal. Code Regs., tit. 14, § 15062, subd. (d)). (4) Statutes § 20--Construction—Judicial Func- tion--Interpreting Laws as Written.--The role of a judicial bodyis to interpret the laws as they are written. It is for the Legislature to weigh the rele- vant policy considerations. (5) Pollution and Conservation Laws § 1.8- California Environmental Quality Act--Projects- -Exemptions--In-fill Development--Within City Limits.--The plain meaning of the phrase "within city limits,” as it is used in Cal. Code Regs., tit. 14, § 15332, requires that a project occur within the boundaries of a municipality. (6) Statutes § 30--Construction--Language--Plain Meaning Rule-When Language Clear.--If the statutory languageis clear, a statute's plain meaning generally controls. (7) Statutes § 38--Construction--Giving Effect to Statute—Construing Every Word--In Context of Statutory Framework.--A court must consider the words of a statute in the context of the statutory framework, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose. (8) Statutes § 49--Construction--Reference to Other Laws--In Pari Materia (Same Subject Matter)--Use of Different Words.--The use ofdif- ferent words in a regulation suggests that different meanings were intended. Wherea statute, with ref- erence to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed. (9) Pollution and Conservation Laws § 1.8-- California Environmental Quality Act--Projects- -Exemptions—Policy Considerations.--Unlike the statutory exemptions in Pub. Resources Code, § 21080, subd. (b), which reflect policy decisions of the Legislature, the categorical exemptions identi- fied in Cal. Code Regs., tit. 14, § 15000 et seq., [*1409] represent a determination by the Secretary for Resources that particular classes of projects generally do not have a significant effect on the en- vironment (Cal. Code Regs., tit. 14, § 15300). Thus, a policy does not overcomethe requirements of the California Environmental Quality Act (Pub. Re- sources Code, § 21000 et seq.) and does not expand an exemption to projects that clearly lie outside the legal criteria. (10) Pollution and Conservation Laws § 1.8-- California Environmental Quality Act--Projects- -Exemptions--In-fill Development--Within City Limits.--A county used the wronglegal standard in applying the in-fill development exemptionset forth in Cal. Code Regs., tit. 14, § 15332, and substantial evidence did not show that the proposed subdivi- sion, which wasoutsidethe city limits, satisfied the exemption's criteria. [Manaster & Selmi, Cal. Environmental Law & Land Use Practice (2010) ch. 21, § 21.06; Cal. Forms of Pleading and Practice (2010) ch. 418, Pollution and Environmental Matters, § 418.33.] COUNSEL:Remy, Thomas, Moose & Manley and SabrinaV. Teller for Plaintiffs and Appellants. Jewell J. Hargleroad for Fairview Community Club as Amicus Curiae on behalf of Plaintiffs and Appel- lants. Richard E. Winnie, County Counsel, Brian E. Washington, Assistant County Counsel, and ManuelF. Martinez, Associate County Counsel, for Defendants and Respondents. Richard K. Abdalah and Miriam H. Wen-Lebron for RealParties in Interest and Respondents. JUDGES: Opinion by Jones, P. J., with Simons and Needham,JJ., concurring. OPINIONBY:Jones OPINION JONES, P. J.--Appellants Fred and D'Arcy Tomlinson (the Tomlinsons) filed a petition for a writ of administrative mandate (Code Civ. Proc., § 1094.5), challenging the decision of respondent County of Alameda (County) to approve a subdivi- sion development proposedbyrealparties in inter- est, Y.T. Wong and SMI Construction, Inc. (Devel- oper). The trial court denied the petition. The Tomlinsons appeal from the trial court's order, [*1410] contending the County abused its discre- tion in deeming the proposed subdivision exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (CEQA), under the categorical [**2] exemption for in-fill development (Cal. Code Regs., tit. 14, § 15332). As weagree that this exemption does not apply, we reverse the trial court's order and remand the matter with instructions to issue a writ of mandate direct- ing the County to set aside its decision. 1 All further statutory citations are to the Public Resources Code unless otherwise specified. We refer to the CEQAregulations (Cal. Code Regs., tit. 14, § 15000et seq.), as "the Guidelines." (San Lorenzo Valley Com- munity Advocates For Responsible Educa- tion v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1372 [44 Cal. Rptr. 3d 128] (San Lorenzo).) FACTUAL AND PROCEDURAL BACK- GROUND The Proposed Subdivision In December 2006, Developer filed an applica- tion with the Alameda County Planning Department (Planning Department) to merge two parcels on Bayview Avenue into one 1.89-acre parcel, subdi- vide it into 12 lots, and develop each with a single- family home (the proposed subdivision). The pro- posed subdivision site is located in the Fairview area of unincorporated Alameda County, a residen- tial area primarily consisting of single-family homes. The property is classified for zoning pur- poses as R-] residential single family. Three [**3] olderstructures are situated on the site, but the rear of the property is undeveloped. There are 34 trees on or adjacent to the site. As part of the proposed subdivision, all of the structures would be demol- ished, and most of the trees would be removed. In April 2007, Developer revised its application to address concernsraised by various agencies. Preliminary Plan Review On May 14, 2007, the Planning Departmentis- sued a referral notifying various agencies and local residents of Developer's revised application and inviting comments. Although the Planning Depart- ment had originally contemplated conducting an initial study (Guidelines, § 15063), the referral indi- cated that the proposed subdivision was exempt from CEQA "based onthesite's existing conditions (developed as a low-density residential site with gently sloping land and minimalhabitat value), and conformanceto the existing zoning forthesite ... ." On July 2, 2007, the Alameda County Planning Commission (Planning Commission) held a pre- liminary plan review for the proposed subdivision at [*1411] its regularly scheduled meeting. The staff report concluded that the proposed subdivision was categorically exempt from CEQAasin-fill de- velopment [**4] (Guidelines, § 15332) because "the proposed development would occur in an es- tablished urban area, would notsignificantly impact traffic, noise, air or water quality, and could be served by required utilities and public services." The staff report noted that the plans did not meet zoning requirements for guest parking, and onelot violated the setback requirements of a zoning ordi- nance. Planning Departmentstaff believed a reduc- tion in the number of lots might be required to re- solve these issues. When the Planning Commission opened the floor to public testimony, residents voiced concerns aboutthe loss of views, compatibility with existing homes, additional traffic, parking, and preservation of the mature trees. The chairman continued the matter, noting "this is the direction we've given[,] and we look forward to you [(Developer)] coming back to us with your formal application." In an August 2007 e-mail to the County, the Tomlinsons noted that two new developments were underway within half a mile of the proposed subdi- vision and that there were several other develop- ments within a one-mile radius. They asked for data on recent and planned growth in the area and com- prehensive plans addressing [**5] the impact on the infrastructure, includingtraffic, transportation, utilities, and police andfire protection. On November 19, 2007, the County sent out anotherreferral regarding the proposed subdivision, noting that it had been modified to address com- ments from various agencies and the public. The referral gave notice that the Planning Commission would consider the proposed subdivision again on December 17, 2007. On November 30, 2007, the Tomlinsons sent County staff a letter signed by more than 70 local residents, expressing concerns about additionaltraf- fic congestion and related safety issues, increased taxes andutility costs, reduced property values, and drainage problems. Noting that other single-family homes less than a quarter-mile away had been on the market for a year, the letter expressed concern that the houses in the proposed subdivision could becomerentals with multifamily occupancyif they did notsell, significantly increasing parking over- flow andtraffic in the area. Residents requested an environmental review to evaluate whether the pro- posed subdivision was consistent with the goals of the generalplan. A few dayslater, the Tomlinsons pointed out the issues to [**6] be considered in reviewing new in-fill projects under the specific plan, including residential density, traffic, parking, public services and utilities, building height, natural [*1412] fea- tures such as mature vegetation and creeks, andre- tention of existing areas of contiguous open space. The Tomlinsons were "particularly interested in the findings of (what we've read as required in the ... Specific Plan) an environmental review." Approval by the Planning Commission The Planning Commission considered the pro- posed subdivision at its regularly scheduled meeting on December 17, 2007. Developer had modified the plans to reduce the density ofthe site to 11 lots. Ten of the lots ranged from 5,000 to 5,186 squarefeet, and onelot had an area of 7,170 square feet. Each lot would be developed with a two-story, 2,900- square-foot home. Planning Department staff indicated that the proposed subdivision "complied with the relevant General Pian, Fairview Area Specific Plan and zon- ing requirements," "would occur in an established urban area, has no value as wildlife habitat, would not result in significant effects relating to traffic, noise, air quality or water quality, and can be ade- quately served by [**7] all required utilities and public services ... ." Accordingly, the staff recom- mended that the Planning Commission find the pro- posed subdivision "Categorically Exempt from the requirements of [CEQA] per Section 15332, Infill Development Projects, and that further environ- mental analysis is not necessary." At the Planning Commission's meeting, the Tomlinsons acknowledged the County's conclusion that the proposed subdivision was exempt asin-fill, but said: "[W]e really do feel that it's critical that an environmental assessment is done because ... [75] homeowners... sign[ed] that petition, and their pri- mary concern wasexisting traffic issues ... ." They explained that several other new developments within a half-mile of the proposed subdivision would generate more than 100 cars in additional traffic, and that traffic managementwascritical un- der the specific plan. By resolution, the Planning Commission ap- proved the proposed subdivision and found it ex- empt from CEQA, concluding the proposed subdi- vision was in the public interest and imposing 60 conditions "necessary for the public health and safety and a necessary prerequisite to the orderly developmentofthe surrounding area." The [**8] Appealto the Board ofSupervisors On behalf of local residents, the Tomlinsons appealed from the Planning Commission's decision to the Alameda County Board of Supervisors (Board). (See Alameda County Gen. Ord. No. 16.08.100.) The Tomlinsons wrote a [*1413] letter to the Board reiterating the concerns raised before the Planning Commission and expressing confusion that the proposed subdivision was exempt from CEQA,contending the specific plan required such reviewforall in-fill projects. They noted again that there were other developments within a half-mile radius of the proposed subdivision and expressed concern thatthe intent of the specific plan would be circumvented if the County applied the exemption to all of them. In such case, the Tomlinsons con- tended, analysis of each individual project andtheir cumulative effects would not be addressed. The Planning Department submitted a summary of the Planning Commission's decision and the Tomlinsons' appeal to the Board, noting the resi- dents' desire for a traffic study of the proposed sub- division's individual and cumulative impacts. Fourdaysprior to the hearing before the Board, the Tomlinsonssent an e-mail to County planners entitled, "Assistance [**9] Requested" andstating: "It is our understanding for the Environmental Im- pact categorical exemption, an Environmental Checklist (Appendix G of CEQA guidelines) is typically filed. Since the Fairview Plan required environmental impact reviews[,] we wanted to check that this procedural process did occur ... ." The Tomlinsons asked for a copy of this checklist. Their e-mail also set out (1) subdivision (c) of sec- tion 15332 of the Guidelines, which requires that the proposed development have "no value, as habi- tat for endangered, rare or threatened species," and (2) a provision in the specific plan that "[t]he County shall require that roadways and develop- ments be designed to minimize impacts to wildlife corridors and regionaltrails." The Tomlinsons said deer and other wildlife used this open space daily as a corridor to Don Castro Regional Park. On April 8, 2008, the day of the Board hearing, a County planner responded to the Tomlinsonsin an e-mail noting: "There is no indication leading the lead agency to suspect that the project site has any value for endangered, rare or threatened species." The remainder ofthe e-mail, taken directly from the December 17, 2007 staff report, simply [**10] re- stated the basis for the exemption. At the Board hearing, the Tomlinsons said the proposed subdivision violated the specific plan's density requirements, which they claimed allowed fewer than eight homeson the site. They said they had "learned that infill projects are categorically exempt from environmental reviews," but again contended the specific plan required environmental review ofin-fill projects and raised concerns about the cumulative impact of this proposed subdivision and several other developments nearby. [*1414] The Board denied the Tomlinsons' appeal and approved the proposed subdivision. The Board did not expressly find that the proposed subdivision was exempt from CEQAbutindicated in its resolu- tion that the Planning Department had "review[ed] this petition in accordance with the provisions of [CEQA], and determined that it was Categorically Exempt pursuant to Section 15332 (Infill Develop- ment)." The Board proposed two additional condi- tions relating to viewsheds and sidewalk construc- tion, but otherwise concurred with the findings and conditions of the Planning Commission. The Trial Court Proceedings On July 7, 2008, the Tomlinsons filed in Ala- meda County Superior Court a [**11] verified peti- tion for a writ of mandatesetting aside the County's decision. They alleged the County hadviolated state planning and zoning laws (Gov. Code, § 65000 et seq.) and had not complied with CEQA.In Septem- ber 2008, they amendedtheir petition to supplement their allegations. On January 15, 2009, the trial court held a hearing on the petition, and took the matter under submission. Three monthslater, the trial court denied the petition. The Tomlinsonsfiled a timely notice of appeal from the trial court's order. > On appeal, the Tomlinsons have abandonedtheir contentions under the state Planning and Zoning Law (Gov. Code, § 65000 et seq.) and focus exclu- sively on the County's failure to comply with CEQA. 2 An order denying a petition for a writ of mandate is appealableas a final judgmentin a special proceeding. (Haight v. City of San Diego (1991) 228 Cal.App.3d 413, 416, fn. 3 [278 Cal. Rptr. 334]; Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 863, fn. 1 [34 Cal. Rptr. 251].) DISCUSSION A. The Standard ofReview "In considering a petition for a writ of mandate in a CEQAcase,‘fo]ur task on appealis "the same as the trial court's." [Citation.] Thus, we conduct our review independent ofthe trial court's findings .... [**12] ... [and] examinethe [County's] decision, not the trial court's." (Banker's Hill, Hillcrest, Park West Community Preservation Group v. City ofSan Diego (2006) 139 Cal.App.4th 249, 257 [42 Cal. Rptr. 3d 537], citation omitted.) Under section 21168.5, we review the County's exemption deter- mination for a prejudicial abuse ofdiscretion. (San Lorenzo, supra, 139 Cal.App.4th at pp. 1381-1382 [applying § 2/168.5 to agency's exemption deter- mination]; East Peninsula Ed. Council, Inc. v. Pa- los Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155, 165 [258 Cal. Rptr. 147] (East Peninsula) (same].)* "Abuse [*1415] of discretion is established if the agency has not proceeded in a mannerrequired by law or if the determination or decision is not supported by substantial evidence." (§ 21168.5.) " Judicial review ofthese two types of error differs significantly: [w]hile we determine de novo whether the agency has employed the correct procedures, "scrupulously enforc[ing] all legisla- tively mandated CEQA requirements"[citation], we accord greater deference to the agency's substantive factual conclusions.’ [Citation.]" (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 131 [84 Cal. Rptr. 3d 614, 194 P.3d 344].) 3 Both Developer and the Tomlinsons in- correctly contend that section 21168 [**13] provides the standard of review here, but that section applies in actions to set aside a public agency's decision "made asa result of a pro- ceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination offacts is vested in a public agency... ." The County wasnot required to hold a hearing in connec- tion with its exemption determination or the Tomlinsons' appeal. (See Azusa Land Rec- lamation Co. v. Main San Gabriel Basin Wa- termaster (1997) 52 Cal.App.4th 1165, 1210 [61 Cal. Rptr. 2d 447] (Azusa); Alameda County Gen. Ord. No. 16.08.100, subd. D [affording the Board discretion to reject an appeal of subdivision approval without a public hearing].) In any event, "[t]he distinc- tion between [sections 21168 and 21168.5] 'is rarely significant. In either case, the issue .. is whether the agency abused its discre- tion.’ " (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 945 [91 Cal. Rptr. 2d 66] (County of Amador).) B. CEQA: General Principles (1) "It is state policy in California that'the long- term protection of the environment... shall be the guiding criterion in public decisions.’ [Citations.]" (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 112 [62 Cal. Rptr. 2d 612] [**14] (Davidon Homes).) " '[T]he overriding pur- pose of CEQAisto ensure that agencies regulating activities that may affect the quality of the envi- ronment give primary consideration to preventing environmental damage.' " (San Lorenzo, supra, 139 Cal.App.4th atp. 1372, quoting Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117 [104 Cal. Rptr. 2d 326].) To implement this policy, CEQA and the Guidelines establish a three-tiered process deter- mining the level of environmental review required. (San Lorenzo, supra, 139 Cal.App.4th at pp. 1372- 1373; Davidon Homes, supra, 54 Cal.App.4th atp. 112.) Atissue hereis the first step of this process, which requires public agencies to conduct a pre- liminary review to determine whether CEQA ap- plies to a proposed activity. (San Lorenzo, supra, 139 Cal.App.4th atpp. 1372-1373; Davidon Homes, supra, 54 Cal.App.4th at p. 112; see Guidelines, §§ 15060, 15061.) If the activity constitutes a "project" as defined by statute, CEQA applies unless the ac- tivity falls within one of the exemptionsestablished by the Legislature or the CEQA Guidelines. (§ 21080, subd. (a); San Lorenzo, supra, 139 Cal.App.4th at p. 1373; Davidon Homes, supra, 54 Cal.App.4th at p. 112; [**15] see § 21065 [defin- ing “project"].) " "Where a project is categorically exempt, it is not subject to CEQA requirements and "may be implemented without any CEQA compli- ance whatsoever." ' " (San Lorenzo, supra, 139 Cal.App.4th at [*1416] p. 1386.) Accordingly,if the agency determines that an exemption applies, no further environmental review is necessary.(Id. at p. 1373; Davidon Homes, supra, 54 Cal.App.4th at p. 113.)* 4 If the proposed subdivision is not exempt, the agency mustproceedto "[t]he secondtier of the process" and conductan initial study to determine whether there is " ‘substantial evidence that the project may have a signifi- cant effect on the environment.’ " (San Lorenzo, supra, 139 Cal.App.4th at p. 1373; see Guidelines, §§ 15063, 15070; Davidon Homes, supra, 54 Cal.App.4th at p. 113.) If so, the agency must prepare a full environ- mental impact report. (San Lorenzo, at p. 1373; Davidon Homes,atp. 113.) C. The County's Exemption Determination Consti- tutes an Abuse ofDiscretion. The Tomlinsons contend that the requirements of CEQA apply because the proposed subdivision does not meetthecriteria forthe in-fill development exemption. (See Guidelines, § 15332.) We review the County's [**16] finding for substantial evi- dence. (Davidon Homes, supra, 54 Cal.App.4th at p. 115.) To establish the propriety of an exemption, "'the administrati[ve] record must disclose substan- tial evidence of every element of the contended ex- emption ... .' [Citation.]" (CalBeach Advocates vy. City ofSolana Beach (2002) 103 Cal.App.4th 529, 536 [127 Cal. Rptr. 2d 1] (CalBeach).) 1. The In-fill Development Exemption (Guidelines, § 15332). A project is categorically exempt as "in-fill de- velopment"if: "(a) [it] is consistent with the applicable general plan designation and all applicable general plan policies[,] as well as with applicable zoning desig- nation and regulations[;] "(b) [t]he proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses[;] "(c) [t]he project site has no value, as [a] habitat for endangered,rare or threatened species[;] "(d) [a]pproval of the project would notresult in any significant effects relating to traffic, noise, air quality, or water quality[; and] "(e) [t]he site can be adequately served by all required utilities and public services." (Guidelines, § 15332, italics added.) The Tomlinsons' primary contention is that the proposed subdivision [**17] will not occur "within city limits” under subdivision (b) of Guidelines sec- tion [*1417] 15332 becausethe site is located in unincorporated Alameda County. * The County seeks a broader construction of the phrase "within city limits" but argues, along with Developer, that the Tomlinsons are precluded from asserting the "within city limits" requirement in the first instance because they did not object on this ground at the administrative level and, therefore, failed to exhaust their administrative remedies as to this argument (¢ 21177). As we explain in part C.3. of this opinion, we conclude the Tomlinsons are correct in their assertion that substantial evidence does not show the proposed subdivision satisfies the "within city limits" requirement of the in-fill development ex- emption. Before we reach the merits of this argu- ment, however, we must first dispose of respon- dents' contention that section 21177 precludes the Tomlinsonsfrom assertingit. ° 5 The Tomlinsons also contend the pro- posed subdivision "would not entirely com- ply with the local zoning ordinance," and would not be served by existing utilities. (See Guidelines, § 15332, subds. (a), (e).) They have not set forth all the material evi- dence on [**18] these issues, pointing only to evidence that supports their position, and have waived any error in this regard. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 881 [92 Cal. Rptr. 162, 479 P.2d 362]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [19 Cal. Rptr. 3d 416].) More- over, although they cite facts relating to utili- ties and zoning, they fail to provide a rea- soned argumentestablishing this claim of er- ror. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [57 Cal. Rptr. 3d 363].) 6 Thetrial court agreed with respondents’ contentionsin this regard. We review this de- termination independently. (Sierra Club vy. City of Orange (2008) 163 Cal.App.4th 523, 536 [78 Cal. Rptr. 3d 1] (City of Orange); Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865, 873 [50 Cal. Rptr. 3d 636] (Lodi).) 2. Section 21177 Does Not Bar the "Within City Limits" Argument. (2) Section 21177 codifies the doctrine of ex- haustion of administrative remedies in CEQA pro- ceedings. (Lodi, supra, 144 Cal.App.4th at p. 875.) Former section 21177, subdivision (a) provided: "Noaction or proceeding may be brought[to attack, review,set aside, void, or annulcertain acts or deci- sions of a public agency on the grounds of noncom- pliance with CEQA]unlessthe alleged grounds for noncompliance with this division [**19] were pre- sented to the public agency orally or in writing by any person during the public commentperiod pro- vided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination." (See Stats. 2010, ch. 496, § 11, effective Sept. 29, 2010 [no substantive change].) Although the exhaustion requirement has been described as "jurisdictional" (Bakersfield Citi- zens For Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1199 [22 Cal. Rptr. 3d 203]), a failure to exhaust does not deprive a court of fundamental subject matter jurisdiction (Azusa, supra, 52 Cal.App.4th at pp. 1215-1216). Properly understood, exhaustion under section 21177 is a statutory prerequisite for asserting a ground of CEQA noncompliance. (Porterville Citi- zens For Responsible Hillside Developmentv. City ofPorterville (2007) 157 Cal.App.4th 885, 910 [69 Cal. Rptr. 3d 105] [*1418] (Porterville).) It is de- signed to give an agency "the opportunity to receive and respond to articulated factual issues and legal theories before its actions are subject to judicial review." (Ibid., citing Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198 [200 Cal. Rptr. 855].) To that end, the exact issue asserted in thetrial court must have been pre- sented to the administrative agency. [**20] (Re- source Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894 [236 Cal. Rptr. 794].) The petitioner bears the burden of showing that the issues raised in the judicial pro- ceeding were first raised at the administrativelevel. (Porterville, at p. 909.) The Tomlinsons contend they exhausted their administrative remedies before the County, main- taining they are subject to a less stringent standard for exhaustion because (1) this was an administra- tive proceeding, and they were unrepresented by counsel, and (2) the County misled them byfailing to expressly advise them of the legal requirement that the proposed subdivision be "within city lim- its." They and otherlocal residents raised a number of concerns in the administrative proceedings and requested environmental review multiple times. They questioned the applicability of the exemption but did so, not because the proposed subdivision was outside city limits, but on the ground that the specific plan required environmental review. We need not decide whether to hold the Tomlinsons to a lesser standard or whether these objections were sufficient to satisfy the exhaustion requirement, as we conclude section 21177 does not apply here. 7 7 "'"{Gjeneral [**21] objections to project approval," ' "" " ‘generalized environmental comments ... ,' ‘relatively ... bland and gen- eral references to environmental matters' [ci- tation], or ‘isolated and unelaborated com- ment[s]' [citation] will not suffice." (City of Orange, supra, 163 Cal.App.4th at p. 536.) Nonetheless, "less specificity is required to preserve an issue for appeal in an administra- tive proceeding than in a judicial proceeding ... because [in] administrative proceedings, [parties] generally are not represented by counsel. To hold such parties to knowledge of the technical rules of evidence and to the penalty of waiver for failure to make a timely and specific objection would be unfair to them." [Citation.] It is no hardship, however, to require a layman to make known what facts are contested.' [Citation.]" (Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 163 [217 Cal. Rptr. 893]; see East Peninsula, supra, 210 Cal.App.3d at pp. 176-177.) (3) In Azusa, supra, 52 Cal.App.4th at page 1209, the court held that the doctrine of exhaustion of administrative remedies does not apply in actions challenging an agency's exemption determination. The court noted that under the [**22] statute's own terms, the exhaustion requirement established by section 21177 applies only "where (1) CEQA pro- vides a public comment period, or (2) there is a public hearing before a notice of determination is issued." (Azusa, at p. 1210.) CEQA does not pro- vide for a public commentperiod before an agency makes an exemption finding, and there is no "'pub- lic hearing ... before the issuance of the notice of determination' " because this document is never filed if the agency declares an exemption. (Azusa, at [*1419] p. 1210.) Accordingly, "[t]he only prereq- uisite to an action challenging an exemption deter- minationis that it be brought within 180 days ofthe date ofthe final decision of the agency. (Guidelines, § 15062, subd. (d).)" (Azusa, at pp. 1210-1211, cit- ing Castaic Lake Water Agency v. City of Santa Clarita (1995) 41 Cal.App.4th 1257, 1266 [49 Cal. Rptr. 2d 79], and City ofPasadena vy.State of Cali- fornia (1993) 14 Cal.App.4th 810, 821 [17 Cal. Rptr. 2d 766], disapproved on other grounds in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 569-570 & fn. 2 [38 Cal. Rptr. 2d 139, 888 P.2d 1268]; see Santa Teresa Citizen Action Group v. City ofSan Jose (2003) 114 Cal.App.4th 689, 702 [7 Cal. Rptr. 3d 868] (Santa Teresa) [$ 21177, subd. (e) "codifies the rule that unless there is a clearly [**23] defined administra- tive procedure for resolving complaints, the exhaus- tion doctrine is inapplicable"].) * 8 The hearing in this case was notsufficient to invoke the requirements of section 21177. In Azusa, although the agency had taken comments from staff and interested members of the public at its regularly scheduled public meeting, the court rejected the appellant's contention that this qualified as a " ‘public hearing ... before the issuance of the notice of determination.' " (Azusa, supra, 52 Cal.App.4th atpp. 1188, 1210; see also Con- cerned McCloud Citizens v. McCloud Com- munity Services Dist. (2007) 147 Cal.App.4th 181, 189-190 [54 Cal. Rptr. 3d 1] {holding that CEQA did not require a pub- lic comment period in connection with agency's determination that approval of a tentative agreement did not constitute "ap- proval" of a proposed subdivision triggering CEQA _requirements, and_ informational meeting did not qualify as a "public hearing before the issuance of the notice of determi- nation"].) Relying upon the analysis ofAzusa to hold that section 21177 does not apply in this case advances CEQA's strong policies of environmental protection and public disclosure of information regarding the environmental impact [**24] of agency action. (See San Lorenzo, supra, 139 Cal.App.4th at p. 1372; Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1315 [8 Cal. Rptr. 2d 473].) Moreover, this holding does not offend the dual policy rationale giving rise to the exhaustion re- quirementin the first instance. The doctrine of ex- haustion of administrative remedies "prevents courts from interfering with the subject matter of another tribunal" by giving the agency an opportu- nity to respond to factual issues and legal theories within its area of expertise before its actions are reviewed by a court. (Lodi, supra, 144 Cal.App.4th at p. 874.) The exhaustion requirement also '"' "fa- cilitates the development of a complete record that draws on administrative expertise and promotes Judicial efficiency." [Citation.] It can serve as a pre- liminary administrative sifting process [citation], unearthing the relevant evidence and providing a record which the court may review. [Citation.]' " (Sierra Club v. San Joaquin Local Agency Forma- tion Com. (1999) 21 Cal.4th 489, 501 [87 Cal. Rptr. 2d 702, 981 P.2d 543], quoting Yamaha Motor Corp. v. Superior Court (1986) 185 Cal.App.3d 1232, 1240-1241 [230 Cal. Rptr. 382]; see Lodi, at p. 874.) The point the Tomlinsons purportedly failed to raise here--that the project [**25] would not occur "within city limits"--does not implicate the County's particular [*1420] expertise and does not require an evidentiary determination. Indeed, the fact on which it turns is undisputed, and the County conceded at oral argument that it had not been deprived of an opportunity to offer evidence of this fact. With these policy implications in mind, we follow the lead of the court in Azusa in holdingthat section 21177 does not bar the Tomlinsons from challenging the County's exemption determination on the ground that the proposed subdivision is not "within city limits." In so holding, we recognize that the Tomlinsons apparently acknowledge a duty to exhaust with re- gard to their "within city limits" argument, because "there was some opportunity to communicate con- cerns to the County's decisionmakers." (See ¢ 21177, subd. (e) [§ 21177 does not apply to "any alleged grounds for noncompliance with [CEQA] for which there was no public hearing or other op- portunity for members of the public to raise those objectionsorally or in writing prior to the approval of the project..."].) Indeed, they expressly conceded in the trial court that they "[did] not claim that the potential exception [**26] [set out in Azusa] ap- plies ... [and] readily acknowledge[d] that since the County held a hearing, [they] had a duty to ex- haust." "This court, of course, is not bound to ac- cept concessions ofparties as establishing the law applicable to a case." (Desny v. Wilder (1956) 46 Cal.2d 715, 729 [299 P.2d 257].) ° The applicabil- ity of section 21177s exhaustion requirement to actions challenging an agency's exemption determi- nation is a matter of statutory interpretation and a pure question of law. (See East Peninsula, supra, 210 Cal.App.3d at p. 165 "The interpretation and applicability of a statute is a question oflaw ... ."].) In such cases, "{i]n the public interest we have dis- cretion to reject [a party's] concession, because our function to correctly interpret the statute is not con- trolled by [a party's] concession of its meaning." (RJ. Land & Associates Construction Co. v. Kie- wit-Shea (1999) 69 Cal.App.4th 416, 427, fn. 4 [81 Cal. Rptr. 2d 615]; see Bell v. Tri-City Hospital Dist. (1987) 196 Cal.App.3d 438, 449 [241 Cal. Rptr. 796] (Bell) ["In our view, the Bells' counsel's erroneous concession cannot and should notprevent this court from applying soundlegal principles to the objective facts disclosed by the record."], disap- proved on other [**27] grounds in State ofCalifor- nia v. Superior Court (2004) 32 Cal.4th 1234, 1244 [13 Cal. Rptr. 3d 534, 90 P.3d 116]; see also Bell, at p. 450 [emphasizing the [*1421] strong public policy in favor of resolving cases on their merits rather than on technical procedural grounds].) As noted above, CEQA promotes the public's interest in protection of the environment and the disclosure of information regarding public action that may af- fect the environment. (San Lorenzo, supra, 139 Cal.App.4th at p. 1372; see Sierra Club v. County ofSonoma, supra, 6 Cal.App.4th at p. 1315 [noting that the purpose of the environmental impact report is "informing the public and governmentofficials of the environmental consequences of decisions before they are made"].) The County's reliance on an ex- emption that, by its plain meaning, does not apply thwarts these purposes and impactsthe public as a whole, not just the Tomlinsons. Wetherefore reject the Tomlinsons' concession in the trial court and hold, in the public interest, that section 21177 does not preclude the Tomlinsons from challenging the County's exemption determination because the pro- posed subdivisionis not "within city limits." 9 Asthe parties’ briefs did not address the applicability [**28] of the exhaustion re- quirement of section 21177 in an action chal- lenging an agency's exemption determina- tion, we requested supplementalbriefing re- gardingthis issue and the court's authority to decide it, in light of the Tomlinsons' conces- sions and failure to raise this argument. (See Gov. Code, § 68081.) In the supplemental briefing, the Tomlinsons argued that Azusa sets a "very low bar" for exhaustion of ad- ministrative remedies for exemption deter- minations, but maintained the position set forth in their opening and reply briefs that because they were not represented by coun- sel in the administrative proceedings and the County misled them regarding the exemp- tion's criteria, their challenge to the exemp- tion on other grounds and their general ob- jections to the project were sufficient to ex- hausttheir administrative remedies. Wenote that after our decision in this case was filed, Division Two ofthis court certified its opin- ion in Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830 [112 Cal. Rptr. 3d 354] (Hines) for publication. ' In Hines, the court held that sec- tion 21177s exhaustion requirement applied in cir- cumstances similar to those presented here. In that case, the appellants acknowledged the [**29] pro- ject was a single-family residence normally exempt from CEQA (Guidelines, § 15303, subd. (a)), but contended exceptions for cumulative impact and particularly sensitive environments precluded reli- ance on the exemption (Guidelines, § 15300.2, subds. (b) & (c)). (Hines, atpp. 851-853.) The court concluded the appellants "failed to exhaust their administrative remedies ... by failing to raise any issue regarding the purported violation of CEQA before the county at any stage, despite ample notice that county staff considered the project exempt and several opportunities ... to raise any objection or argument with respect to the categorical exemption. (§ 21177, subd. (a).)" (Hines, at pp. 852-853, fn. omitted.) The court concluded, by negative implica- tion from section 21177, subdivision (e), that sec- tion 21177's exhaustion requirement applies when there are public hearings that include environmental review, ample notice of such hearingsis given noti- fying the public of the agency's reliance on the ex- emption, and the public does not raise an objection to the exemption despite an opportunity to do so. (Hines, at pp. 852-855; see § 21177, subd. (e) ["This section does not apply to any [**30] alleged grounds for noncompliance with this division for which there was nopublic hearing or other oppor- tunity for members ofthe public to raise those ob- jectionsorally or in writing prior to the approval of the project, or if the public agency failed to give the notice required by law."].) Hines cites Azusa in support of its holding, with the following paren- thetical description: "exhaustion requirement ap- plies only when CEQA provides public comment [*1422] period or there is public agency hearing before notice of agency determination is filed." (Hines, atp. 854.) 10 Wegranted rehearing on our own mo- tion to allow further consideration of Hines and asked for additional briefing from the parties regarding its impact on ourdecision. The court's holding in Hines does not alter our conclusion under Azusa that section 21177's ex- haustion requirementhas no preclusiveeffectin this case. Hines does not purport to construe the lan- guage of section 21177, subdivision (a) and does not consider the Azusa analysis holding that section 21177 applies only: "where (1) CEQA provides a public commentperiod, or (2) there is a public hear- ing before a notice of determination is issued." (Azusa, supra, 52 Cal.App.4th at p. 1210, [**31] italics added.) " To the extent Hinesis impliedly at odds with the holding in Azusa, we respectfully dis- agree. 11 Section 21177, subdivision (a)'s refer- ence to "the issuance of the notice of deter- mination" may not be construed to encom- pass every agency decision. Under CEQA, the term "notice of determination" refers to a document an agency mustfile "[w]henever [it] approves or determines to carry out a project that is subject to this division [(CEQA)] ... ." ($$ 21108, subd. (a), 21152, subd. (a).) The Guidelines set out special re- quirements for this document and confirm that the term "notice of determination" ap- plies when projects are subject to CEQA. (See Guidelines, § 15094 [contemplating an environmental impactreport or initial study showing no significant effect on the envi- ronment].) When an agency determines that CEQA does not apply because a projectis exempt, it may file a "notice of the determi- nation ... .£" ($$ 2/108, subd. (b), 21152, subd. (b).) The Guidelines refer to this filing as a "notice of exemption" and treat it as a separate documentwith its own requirements and statute of limitations. (Guidelines, § 15062; compare § 21167, subd. (d) [a notice of exemption commences a [**32] 35-day statute of limitations] with Guidelines, § 15094, subd. (g) [a notice of determination commences a 30-day statute of limitations]; see also § 2/167, subds. (b) & (c).) There is no indication the County filed a notice of ex- emption in this case. (4) We recognize that following Azusa in the circumstances presented in Hines may require a court to decide factual questions reserved for agency determination, based on an evidentiary re- cord that has not been fully developed. ” We are persuaded, however, that the Azusa court's con- struction of the statutory languageis correct." 'As a judicial body, ... our role [is] to interpret the laws as they are written.’ " (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1299 [48 Cal. Rptr. 3d 183, 141 P.3d 288], fn. omitted.) It is for the Legislature to weigh the relevant policy considera- tions in setting forth the procedure for reviewing CEQA determinations, including the necessary predicates for challenging them. (See 39 Cal. 4th at p. 1299.) 12 Like an exemption determination, CEQAdoes not provide for a public com- ment period or require a notice of determina- tion when an agency considers whether an exception precludes reliance on the exemp- tion. (Guidelines, § 15300.2.) Applying the Azusa analysis [**33] in Hines, therefore, would have required the court to decide sig- nificant factual issues not considered by the agency (i.e., whether the project would im- pact wildlife and open the doorto successive projects), based on an evidentiary recordthat addresses these questions only incidentally, if at all. (Hines, supra, 186 Cal.App.4th at pp. 851-852; see Santa Teresa, supra, 114 Cal.App.4th at p. 707 ["extra-record evi- dence is inadmissible to support the writ pe- tition"]; Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at pp. 572- 573 [deference to agency determination un- der separation of powersdoctrine andin light of agency expertise].) [*1423] Having disposed of respondents’ exhaustion de- fense, we turn to the merits of the Tomlinsons' con- tentions regarding the "within city limits" require- ment. 3. Substantial Evidence Does Not Support the County's Exemption Finding. The Tomlinsons contend that substantial evi- dence does not show the proposed subdivision will occur "within city limits," an essential criterion of the in-fill development exemption (Guidelines, § 15332), because the site is located in unincorpo- rated Alameda County. To satisfy this criterion, they argue, a project must [**34] occur "within the clearly demarcated (and commonly accepted) legal boundaries of a municipality." The County contends this interpretation is "inflexible" and the phrase “within city limits" must be construed in a manner that promotesin-fill development within urbanized areas. The scope of an exemption is a question of statutory interpretation that we review independ- ently. (San Lorenzo, supra, 139 Cal.App.4th at p. 1382.) We must interpret CEQA and its Guidelines "in such a manneras to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Guidelines, § 15003, subd. (f); see County ofAmador, supra, 76 Cal.App.4th at pp. 943-944.) Exemptions to CEQA are narrowly construed and "'[e]xemption catego- ries are not to be expanded beyond the reasonable scope oftheir statutory language.' " (San Lorenzo, supra, 139 Cal.App.4th at p. 1382, quoting Moun- tain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 125 [65 Cal. Rptr. 2d 580, 939 P.2d 1280].) (5) Applying these principles, we agree with the Tomlinsons' construction of section 15332, subdivi- sion (b) of the Guidelines and conclude that the proposed subdivision will not occur "within city limits" within the meaning of [**35] this provision. The plain meaning of the phrase "within city lim- its," as it is used in section 15332, requires that a project occur within the boundaries of a municipal- ity. (See People v. Dieck (2009) 46 Cal.4th 934, 940 [95 Cal. Rptr. 3d 408, 209 P.3d 623] (6) [if the statutory languageis clear, the statute's plain mean- ing generally controls].) It is undisputed that the proposed subdivision in this case doesnot. (7) The County was aware throughout the ad- ministrative proceedings that the site is located in the unincorporated area of Alameda County but relied on the exemption nonetheless because the proposed subdivision would occur in an "estab- lished urban area." On appeal, the County argues against "reading the ‘infill' exemption too rigidly" and asserts: "Just one look at an aerial photograph of this development located a half mile from Inter- state 580 unequivocally demonstrates that the pro- ject is urban infill." We disagree, concluding that the County reads the exemption too broadly. We must [*1424] consider the wordsof the statute in the context of the statutory framework, giving " ‘significance ... to every word, phrase, sentence[,] and part of an act in pursuance ofthe legislative purpose.' " (People v. Black (1982) 32 Cal.3d 1, 5 [184 Cal. Rptr. 454, 648 P.2d 104], [**36] quoting Select Base Materials v. Board ofEqual. (1959) 51 Cal.2d 640, 645 [335 P.2d 672].) Accordingly, we must give independent effect to both the require- mentthat the project occur "within city limits" and the final criterion in Guidelines section 15332, sub- division (b) that the project be "substantially sur- rounded by urban uses." The County's reading does not do so. (8) In addition, we observe that the term "ur- banized areas" is defined in the Guidelines and is used in setting out the criteria for other categorical exemptions. (See Guidelines, § 15387 [" ‘Urbanized area’ meansa central city or a group of contiguous cities with a population of 50,000 or more, together with adjacent densely populated areas having a population density of at least 1,000 persons per square mile."]; id., § 1530] [exemption for existing facilities]; id, § 15303 [exemption for new con- struction or conversion of small structures]; id, § 15315 [exemption for minor land divisions].) Thus, in setting out the criteria for the in-fill development exemption, the Secretary for Resources could easily have specified that a project must occur "within an urbanized area," but used the phrase "within city limits" instead. (See Guidelines, § 15332, subd. (b).) This strongly [**37] suggests that the secre- tary intended a different meaning for the "within city limits" criterion. (Zrancas Property Owners Assn. v. City ofMalibu (1998) 61 Cal.App.4th 1058, 1061 [72 Cal. Rptr. 2d 131] ["the use of different words in the regulation suggests that different meanings were intended ..."]; see City ofPort Hue- nemev. City of Oxnard (1959) 52 Cal.2d 385, 395 [341 P.2d 318], quoting People v. Town of Corte Madera (1950) 97 Cal.App.2d 726, 729 [218 P.2d 810] [" "Where a statute, with reference to one sub- ject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed.' "].) The County relies on CalBeach, supra, 103 Cal.App.4th 529, contending the court should refuse to apply the statutory language strictly because do- ing so would frustrate the goal of the exemption. CalBeach does not support the County's expansive reading of the Guideline. In that case, the Court of Appeal construed the statutory exemption for "[s]pecific actions necessary to prevent or mitigate an emergency” (emergency exemption). (§ 2/080, subd. (b)(4).) CEQA defines "emergency" as "a sudden, unexpected occurrence, involving a clear and imminent danger, demanding [**38] immedi- ate action to prevent or mitigate loss of, or damage to, life, health, property, or essential public ser- vices." ($ 21060.3; see CalBeach, at pp. 536-538.) Whena public agency applied the emergency ex- emption in approving a special use permit for the construction of a seawall to preventthe collapse of a sandstone bluff due to erosion, a nonprofit group challenged the decision, contending the [*1425] collapse of the bluff was not an "unexpected" oc- currence. (CalBeach, at p. 535.) The court rejected this contention, holding that an emergency does not have to be unexpected for the emergency exemption to apply. (/d. at p. 537.) Contrary to the County's assertion, however, the court did not simply read the term "unexpected" out of the statute, as the County asks us to do here with the phrase "within city limits"; the court interpreted the provision as a whole and, applying principles of statutory con- struction, refused to read one portion of the statute in a way that nullified another. (Jbid.) In this case, giving effect to the phrase "within city limits" does not nullify any otherpart of the regulation. (9) The County asks us to simply disregard the phrase "within city limits" because, in its judgment, [**39] this requirement "defeat[s] the exemption's goal of allowing infill in very urban settings ... ." Unlike the statutory exemptions (¢ 2/080, subd. (b)), which reflect policy decisions of the Legisla- ture, the categorical exemptions identified in the Guidelines represent a determination by the Secre- tary for Resources that particular classes of projects generally do not havea significant effect on the en- vironment. (Guidelines, § 15300; Sunset Sky Ranch Pilots Assn. v. County of Sacramento (2009) 47 Cal. 4th 902, 907 [102 Cal. Rptr. 3d 894, 220 P.3d 905].) Thus, contrary to the County's assertion, a policy of encouraging urban in-fill does not over- comethe requirements of CEQA and does not ex- pand the exemption to projects that clearly lie out- side the legal criteria. To the extent the County con- tends the statute should extend to all urban in-fill, such policy judgmentsare outside our purview. ® 13 We question whether the proposed sub- division may be deemed "urban"in anycase. The specific plan makes note of the "rural residential character of the area," and a County supervisor recognized an intent "to keep the community semi-rural as much as possible ... ." Photographs show a numberof trees with large canopies, an expanse [**40] of open field at the rear of the site, and sub- urban neighborhoods surrounding it. (See Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511, 541 [98 Cal. Rptr. 2d 334] [explaining the term "urban"], superseded by statute on other grounds,as stated in Citizens for Responsible Equitable Environmental Development v. City of San Diego Redevel- opment Agency (2005) 134 Cal.App.4th 598, 607 [36 Cal. Rptr. 3d 249].) (10) We conclude, accordingly, that the County used the wrong legal standard in applying the ex- emption and that substantial evidence does not show the proposed subdivision satisfied the exemp- tion's criteria. In short, the project was not exempt from CEQA review. It is well settled that "Tajn agency's use of an erroneouslegal standard consti- tutes a failure to proceed in a manner required by law." (East Peninsula, supra, 210 Cal.App.3d atp. 165.) Moreover, whena failure to comply with the law subverts the purposes of CEQA by omitting information from the environmental review [*1426] process, the error is prejudicial. (2/0 Cal.App.3d at p. 174.) As the Tomlinsons have demonstrated a prejudicial abuse of discretion, the trial court's order must be vacated. “ 14 Having concluded the project does not satisfy the [**41] criteria for the in-fill de- velopment exemption (Guidelines, § 15332), we do not consider the Tomlinsons' remain- ing assertions oferror. DISPOSITION The order denyingthepetition is reversed, and the matter is remanded to thetrial court with in- structions to issue a writ of mandate directing the County to set aside its decision approving the pro- posed subdivision and to comply with the require- ments of CEQA whenreconsidering approvalof the proposed subdivision. The parties shall bear their own costs. Simons,J., and Needham,J., concurred. PROOF OF SERVICE Iam a citizen of the United States, over the age of 18 years, a resident of and employedin the County of Santa Clara andnota party to the within action; my business address is 10455 Torre Avenue, Cupertino, California, 95014. I am readily familiar with this firm’s business practice for collection and processing of correspondencefor mailing with Federal Express and the United States Postal Service. On November 15, 2010, I served a copy ofthe attached as indicated: PETITION FOR REVIEWBY REAL PARTIES IN INTEREST AND RESPONDENTS, Y.T. WONG AND SMI CONSTRUCTION,INC. by placing a true copy thereof enclosed in a sealed envelope addressedto: Court ofAppeal of the State of California (1 copy) by Hand Delivery First Appellate District, Division Five 350 McAllister Street San Francisco, CA 94102-4712 Sabrina V.Teller, Esq. (1 Copy) by U.S. Mail REMY, THOMAS, MOOSE & MANLEY LLP 455 Capitol Mall, Suite 210 Sacramento, CA 95814 Richard E. Winnie (1 Copy) by U.S. Mail County Counsel Brian E. Washington Assistant County Counsel COUNTY OF ALAMEDA 1221 Oak Street, Suite 450 Oakland, CA 94612 Office ofAttorney General (1 Copy) by U.S. Mail 1515 Clay Street P.O. Box 70550 Oakland, CA 94612-0550 Alameda County Superior Court (1 Copy) by U.S. Mail 1225 Fallon Street Oakland, CA 94612 with postage thereonfully prepaid for collection and mailing at myplace of business following ordinary businesspractices. Said correspondencewill be deposited with the United States Postal Service at Cupertino, California on the above-referenced date in the ordinary course of business; andthereis delivery service by United States mail at the place so addressed. I declare under penalty ofperjury underthe laws of the State of California that the foregoing is true and correct. Executed on November15, 2010,at Cupertino, California. 7 DIANE REES