First District Finds Petitioner Failed to Exhaust Administrative Remedies in CEQA Challenge to Removal of Controversial Sculpture

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In an opinion filed on February 1, 2021, the First Appellate District in Schmid v. City and County of San Francisco found that petitioners challenging the City of San Francisco’s decision to remove a controversial sculpture had failed to exhaust their administrative remedies by not appealing the CEQA determination by the San Francisco Historic Preservation Committee (“HPC”) to the San Francisco Board of Supervisors (“Board of Supervisors”). The challenge involved the unelected HPC’s decision to remove a sculpture facing criticism for “displaying a racist attitude towards Native Americans,” a dispute that the court described as “a local version of the controversies over removal of commemorative symbols, generally names and statues of historical figures, that have played out across the country recently.” The Court found that, “[u]nder CEQA and San Francisco Administrative Code, chapter 31, any appeal of a categorical exemption determination must be made to the Board of Supervisors, as the body of elected officials responsible for making final CEQA determinations.” (Pub. Resources Code, § 21151(c); Cal. Code Regs., tit. 14, § 15061(e); S.F. Admin. Code, § 31.16(a).)

This decision is a good reminder that CEQA determinations by nonelected bodies may need to be appealed to the lead agency’s elected decisionmaking body, and that it is critical for petitioners to carefully navigate agencies’ internal exhaustion requirements, no matter how complicated.

The opinion addressed the removal of “Early Days,” a bronze sculpture that was part of a monument to California’s pioneer period in San Francisco’s Civic Center. In response to criticism that the sculpture was “racist and painful to Native Americans,” the HPC granted a Certificate of Appropriateness (“COA”) authorizing removal of the sculpture, and petitioners appealed that decision to the San Francisco Board of Appeals (“Board of Appeals”). After the Board of Appeals approved the COA, petitioners brought a “potpourri of claims” in San Francisco Superior Court challenging removal of the sculpture, including a challenge to the finding that the removal was categorically exempt from CEQA. The Superior Court sustained a demurrer without leave to amend, and the petitioners appealed to the First Appellate District.

Regarding petitioners’ CEQA claim, the appellate court found that petitioners had failed to comply with the second of two exhaustion requirements. The appellate court first found that exhaustion before the HPC was not required. CEQA generally requires that a petitioner raise some CEQA objection, and that at least one person raise the specific CEQA violation claimed in the petition, before the close of the final public hearing on the challenged determination. (See Pub. Resources Code, § 21177(a)-(b).) However, because there was no advance notice that a categorical exemption from CEQA would be considered at the HPC’s public hearing, the appellate court relied on Defend Our Waterfront v. State Lands Commission (2015) 240 Cal.App.4th 570, to find that petitioners were not required to exhaust their administrative remedies before the HPC.

The appellate court then found that petitioners’ failure to comply with a second exhaustion requirement was fatal to their CEQA claim. CEQA and the San Francisco Administrative Code require that an exemption determination by the HPC be appealed to the elected Board of Supervisors. (Pub. Resources Code, § 21151(c); Cal. Code Regs., tit. 14, § 15061(e); S.F. Admin. Code, § 31.16(a).) Petitioners did not appeal the HPC’s exemption determination to the Board of Supervisors, and the appellate court found that petitioners had thus failed to exhaust their administrative remedies. In reaching this conclusion, the appellate court rejected petitioners’ arguments that requiring an appeal to the Board of Supervisors created a “regulatory morass,” as the CEQA regulations explicitly allow lead agencies to establish procedures governing appeals to their elected decisionmaking body (Cal. Code Regs., tit. 14, § 15061(e)), and that appeal to the Board of Supervisors would have been futile, as the argument relied on evidence that was not in the record and that would not have been definitive even if considered.

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