Sea & Sage Audubon Society, Inc. v. Planning Com.

• Decision Date: 29 August 1983
• Docket Number: TEXACO-ANAHEIM
• Citation: 668 P.2d 664,194 Cal.Rptr. 357,34 Cal.3d 412
• Parties: , 668 P.2d 664 SEA AND SAGE AUDUBON SOCIETY, INC., et al., Plaintiffs and Appellants, v. PLANNING COMMISSION OF the CITY OF ANAHEIM et al., Defendants and Respondents;HILLS, INC., Real Party in Interest and Respondent. L.A. 31654.
• Court: California Supreme Court

Page 357

194 Cal.Rptr. 357

34 Cal.3d 412, 668 P.2d 664

SEA AND SAGE AUDUBON SOCIETY, INC., et al., Plaintiffs and Appellants, v. PLANNING COMMISSION OF the CITY OF ANAHEIM et al., Defendants and Respondents TEXACO-ANAHEIM HILLS, INC., Real Party in Interest and Respondent.

L.A. 31654.

Supreme Court of California In Bank.

Aug. 29, 1983.

As Modified on Denial of Rehearing Oct. 6, 1983.

Wenke, Taylor, Evans & Ikola and Richard A. Derevan, Newport Beach, for plaintiffs and appellants.

William P. Hopkins, City Atty., and Jack L. White, Asst. City Atty., for defendants and respondents.

Latham & Watkins, Robert K. Break and Albert F. Shamash, Newport Beach, for real party in interest and respondent.

KAUS, Justice.

In December 1980, plaintiffs Sea and Sage Audubon Society, Inc., and the Juaneno Band of Mission Indians brought this administrative mandamus action against defendant City of Anaheim (city), challenging the city's approval of a development project proposed by real party in interest Texaco-Anaheim Hills, Inc. (Anaheim Hills). The trial court granted summary judgment against plaintiffs on the ground that they had failed to exhaust their administrative remedies. On this appeal, plaintiffs challenge the dismissal of their action on several theories not raised below, asserting that their failure to exhaust administrative remedies should be excused in light of (1) their "public interest" status, (2) the alleged "futility" of further administrative action on their part, or (3) the alleged invalidity of a filing fee imposed by the city as part of its administrative appeal process. We conclude that plaintiffs' contentions are either untenable as a matter of law or may not be raised for the first time on appeal. Accordingly, we affirm the judgment.

I

On October 6, 1980, the Anaheim Planning Commission held a public hearing on a planned community development project, submitted by Anaheim Hills, which had been under consideration for some time. Plaintiffs appeared at the hearing and opposed the project, maintaining, inter alia, that the environmental impact report (EIR) which had been prepared in connection with the project was inadequate and should be rejected as incomplete. After questioning the developer and eliciting its agreement to alter several aspects of the project in response to some of plaintiffs' concerns, the planning commission voted to certify as complete the EIR and to approve the three tentative tract maps that embodied the proposed project. At the conclusion of the hearing, the chairman advised all those present that if they disagreed with the commission's decision they had 15 days to appeal the decision to the city council. Following the hearing, the commission's certification of the EIR and approval of the tentative tract maps were placed on the "consent calendar" of the next regular city council meeting, scheduled for October 14, 1980.

Under the then-applicable local ordinances and resolutions, "any interested person" was authorized to appeal the commission decision to the city council by (1) filing "an appeal or complaint ... with the City Clerk" within 15 days of the decision, and (2) paying an administrative appeal fee equal to one-half of the original filing fee for the project under consideration; in this case the appeal fee came to $607. Rather than filing an appeal and paying the fee, plaintiffs' representative appeared at the October 14th city council meeting and orally requested the council in effect to waive the fee requirement by postponing a vote on the consent calendar items and scheduling a public hearing on the matter on the council's own motion. One council member noted that the council had heard extensive discussion concerning this development from representatives of the plaintiff organizations at a public hearing held just a few months earlier in connection with the adoption of a proposed amendment to the city's general plan. He asked plaintiffs' representative what new information had come to light that would justify the scheduling of another public hearing on the council's own motion. The representative responded that there had been further developments, but that she was not prepared at that time to detail the evidence that would be presented at the public hearing that she was requesting. Several council members then explained that the appeal fee was intended to defray the costs of "advertising and processing the appeal" and they did not believe that, in fairness, the public treasury should bear those costs without some greater showing. One of the members expressly stated, however, that the council's unwillingness to waive the fee did not reflect any intent to deny "other remedies that [are] available to [plaintiffs, including] the right of appeal"; he reminded plaintiffs' spokeswoman that plaintiffs had until 5 p.m. on October 21, 1980, to file such an appeal. At the conclusion of the discussion, the consent calendar items were approved.

On October 20, plaintiffs' attorney mailed a brief letter to the city council, stating that plaintiffs were "thereby appealing the planning commission's certification of the environmental impact report on the Anaheim Hills project." No filing fee was enclosed. The letter was received by the city clerk's office on October 22, 1980, one day after the filing deadline. At that point, the purported appeal was evidently rejected by the city; the record does not reveal whether the rejection was based on the absence of the filing fee, the lateness of the filing, or--as is most likely--both.

A month and a half later, plaintiffs filed this administrative mandamus action, seeking to compel the city to vacate its approval of the tentative tract maps because of the alleged inadequacy of the EIR. The city and Anaheim Hills demurred on the ground that plaintiffs had failed to allege that they had exhausted their administrative remedies. Plaintiffs then filed an amended complaint, setting forth the actions that they had taken before the planning commission and city council and alleging that such actions constituted adequate exhaustion of the available administrative remedies.

The city and Anaheim Hills then moved for summary judgment on the exhaustion issue, relying on a declaration and documentary evidence substantiating the facts related above. In their opposition to the summary judgment motion, plaintiffs relied on three contentions: (1) that they had complied with the city requirements for filing an administration appeal by having their representative appear at the city council meeting and orally request review; (2) that they had complied with the review procedure by mailing a written complaint within 15 days, even though it had not been received by the city until after the 15-day period; and (3) that there was a triable issue of fact as to whether the written appeal had been received on or before October 21, 1980. On the basis of the uncontradicted declaration and documentary evidence before it, the trial court rejected plaintiffs' contentions and entered summary judgment in favor of the city and Anaheim Hills.

On appeal, plaintiffs no longer contend that they actually exhausted their administrative remedies by their actions at the administrative level. Instead, they now assert that their failure to exhaust such remedies should be excused in light of (1) their "public interest" status; (2) the alleged "futility" of further pursuit of an administrative remedy in this case; and (3) the alleged invalidity of the city's administrative appeal filing fee. In analyzing these contentions, we first turn to the threshold question of whether plaintiffs may properly raise these contentions for the first time on appeal.

II

As a general rule, "issues not raised in the trial court cannot be raised for the first time on appeal." (Estate of Westerman (1968) 68 Cal.2d 267, 279, 66 Cal.Rptr. 29, 437 P.2d 517 and cases cited.) On a number of occasions, however, appellate courts have relaxed this rule and have permitted a party to raise belatedly "a pure question of law which is presented on undisputed facts." (See, e.g., Hale v. Morgan (1978) 22 Cal.3d 388, 394, 149 Cal.Rptr. 375, 584 P.2d 512; Ward v. Taggart (1959) 51 Cal.2d 736, 742, 336 P.2d 534.) This forgiving approach has been most frequently invoked when "important issues of public policy are at issue." (Hale v. Morgan, supra, 22 Cal.3d at p. 394, 149 Cal.Rptr. 375, 584 P.2d 512; Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 5, 97 Cal.Rptr. 431.) Asserting that the new issues which they seek to raise on this appeal involve "purely legal" questions and implicate important issues of public policy, plaintiffs urge us to consider their contentions despite their failure to litigate them below.

Although we have some question whether any of the matters are properly presented, giving plaintiffs the benefit of the doubt we shall discuss the merits of those contentions raised on appeal which do in fact present "purely legal" issues. As we explain, however, at least one of the plaintiffs' claims--the alleged arbitrariness of the city's filing fee--involves factual questions which cannot be resolved on the present record.

III

Relying on the Court of Appeal decision in Environmental Law Fund, Inc. v. Town of Corte Madera (1975) 49 Cal.App.3d 105, 122 Cal.Rptr. 282, plaintiffs contend that they should be excused from the requirements of the exhaustion doctrine because they are public interest organizations seeking to further public, rather than private, rights. Although the city and Anaheim Hills suggest that the Corte Madera decision is inconsistent with established exhaustion of remedies authorities and should not be followed, we have no occasion in this case to pass on the validity of the Corte Madera holding itself, because we conclude that, in any event, the case does not sustain plaintiffs' claim. In Corte Madera, the court found that a public interest litigant should not...