Citizens for Open Government v. City of Lodi (3rd Dist. Nov. 9, 2006)

By Julie Austin

Two non-profit groups, Citizens for Open Government (Citizens) and Lodi First, opposed the City of Lodi’s certification of a Final Environmental Impact Report (FEIR) and approval of a use permit for a Wal-Mart-anchored shopping center.  The trial court found that Citizens had not exhausted all of its administrative remedies because, even though Lodi First filed an appeal to the City Council, Citizens had not filed its own appeal.  The Court of Appeals reversed this determination and found that Citizens had exhausted its administrative remedies under CEQA and the Municipal Code because Citizens appeared before the City Council to file its own objections and participated in the administrative process.  The court also found that Citizens’ claims were not moot even though a trial court had partially granted Lodi First’s petition and vacated the City Council’s approval of the project.


The City of Lodi Planning Commission certified a FEIR and approved an application for a use permit for a large shopping center that proposed Wal-Mart as its anchor tenant.  At each public meeting leading up to this approval, Citizens for Open Government (Citizens) and Lodi First appeared and filed separate, but often overlapping, objections to the project under both CEQA and the City’s zoning laws.

The Lodi Municipal Code states that any person who participates in the review process  before the Planning Commission can request that the City Council review the Commission’s decision and make the final decision for approval of the project.  In compliance with the Code, Lodi First filed a notice of appeal with the City Council within five days of the Planning Commission’s decision.  Citizens did not file its own appeal, but appeared before the City Council to offer its own objections to the project, as well as to offer support for Lodi First’s arguments.  Over the objections of Citizens and Lodi First, the City Council approved the FEIR and use permit for the project.

Exhaustion of Administrative Remedies

The Court of Appeals found that Citizens exhausted its administrative remedies pursuant to both CEQA and the Municipal Code even though it had not filed its own appeal to the City Council.  Under CEQA, a person must “participate” in the administrative process in order to file an appeal, but need not articulate every basis for objecting to a project.  The court found that Citizens sufficiently complied with CEQA by appearing and participating throughout the administrative process and raising its objections before the Planning Commission and the City Council.

Specific to the Municipal Code, the court found that Citizens exhausted its administrative remedies because the Code did not require each party affected by the Planning Commission to file its own appeal.  The language of the Code stated only that any person may file an appeal, but nowhere stated that “each” or “every” person must file an appeal to be able to appear before the City Council.  Moreover, in a notice posted by the City Council, the City warned that a person may later be limited to raising in court only those issues raised by the person “or someone else . . . at the Public Hearing . . . ,” which also suggested that every person was not required to file an individual appeal.  Much like the appeal provisions of CEQA, the Municipal Code merely required that a person appear before the City Council and otherwise participate in the administrative process in order to preserve an issue for appeal.

Mootness of Citizens’ claims when Lodi First’s petition partially granted

Finally, the court found that Citizens’ claims were not moot because a trial court already had partially granted Lodi First’s petition and ordered the City Council to vacate its approval of the project.  The trial court granted Lodi First’s petition only on the issues of inadequate analysis of urban decay and energy impacts.  Yet Citizens’ petition raised additional issues regarding the project’s description, mitigation measures for loss of farm land, and adequacy of evidence supporting alleged economic and infrastructure benefits.  Thus, given that Citizens’ petition raised additional issues, a court could grant Citizens effective relief and thus its claims were not moot.

For more information please contact Julie Austin.  Julie Austin is an associate in the Real Estate, Land Use, and Natural Resources Practice Group in San Francisco.