Filed 8/17/21

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

LOS ANGELES DEPARTMENT OF WATER 

AND POWER,

 Plaintiff and Respondent,

 v.

COUNTY OF INYO et al.,

 Defendants and Appellants.

F081389

(Super. Ct. No. BCV-18-101513-

KCT)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. 

Twisselman III, Judge.

Jarvis, Fay & Gibson, Rick W. Jarvis, Christine L. Crowl; Greg James; Marshall 

S. Rudolph, County Counsel, John-Carl Vallejo, Assistant County Counsel, and Grace 

Chuchla, Deputy County Counsel, for Defendants and Appellants. 

Arthur J. Wylene and John Kennedy for Rural County Representatives of 

California and Rural Counties’ Environmental Services Joint Powers Authority as Amici 

Curiae on behalf of Defendants and Appellants.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts II., III.B., and III.C., of the 

Discussion.
2.

Jennifer B. Henning for California State Association of Counties as Amicus 

Curiae on behalf of Defendants and Appellants.

Michael N. Feuer, Joseph A. Brajevich, Julie C. Riley, Melanie A. Tory; Downey 

Brand, Christian L. Marsh and Kathryn L. Oehlschlager for Plaintiff and Respondent. 

-ooOooThe County of Inyo (County) appeals from a judgment and issuance of a 

peremptory writ of mandate in a proceeding under the California Environmental Quality 

Act (CEQA; Pub. Resources Code, § 21000 et seq.).1 The trial court issued the writ of 

mandate after determining (1) County’s description of the activity constituting its project 

was too narrow and, thus, did not comply with CEQA and (2) the project, when properly 

defined, was not exempt from CEQA’s requirements. The project includes County’s use 

of condemnation proceedings to acquire fee simple title to three sites it leases and uses 

for landfills and County’s continued operation of the landfills. In arguing that the project 

was exempt from CEQA, County relied on the commonsense exemption and the existing 

facilities exemption. (See Guidelines, §§ 15061, subd. (b)(3) [commonsense exemption], 

15301, subd. (a) [existing facilities exemption].)

The published portions of this opinion address exhaustion of administrative 

remedies and the interpretation of the existing facilities exemption. The exhaustion 

question requires an interpretation of section 21177, subdivision (a) and the limitation 

contained in section 21177, subdivision (e). We conclude the issue exhaustion 

requirement does not apply to challenges to the exemptions because County did not 

provide adequate notice that CEQA exemptions would be considered at the public 

hearing held by its Board of Supervisors. As a result of the lack of notice, County did not 

provide an “opportunity for members of the public to raise ... objections” to its reliance 

1 All unlabeled statutory references are to the Public Resources Code. “Guidelines” 

refers to the CEQA regulations set forth in California Code of Regulations, title 14, 

section 15000 et seq. 
3.

on those exemptions. (§ 21177, subd. (e).) Therefore, the issue exhaustion requirement 

does not apply to objections to County’s reliance on the exemptions.

Our interpretation of the existing facilities exemption addresses whether the word 

“facilities” is ambiguous with respect to its application to an unlined landfill. Like the 

court in Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 

Cal.App.4th 1165 (Azusa), we conclude “facilities” is ambiguous—that is, reasonably 

susceptible to more than one interpretation—because it could be interpreted to include or 

exclude unlined landfills. (Id. at p. 1192.) We resolve the ambiguity by interpreting 

“facilities” to exclude unlined landfills. Therefore, County misinterpreted the Guidelines 

and violated CEQA when it concluded the existing facilities exemption applied to the 

project.

In the unpublished portions of this opinion, we conclude County committed two 

other CEQA violations. First, it improperly described the project as constituting only the 

proposed condemnation proceedings and a mere change in ownership of the landfill sites. 

Second, the unduly narrow project description caused County to erroneously conclude the 

commonsense exemption applied. The CEQA violations justified the trial court’s 

issuance of a writ of mandate vacating County’s approval of condemnation proceedings 

for each of the three landfills.

We therefore affirm the judgment.

FACTS

The Landfills

The City of Los Angeles, acting through its Department of Water and Power 

(LADWP), states that it is the largest landowner in Inyo County after the federal

government.2 In the 1950’s, LADWP began leasing land to County for waste 

management purposes. This litigation involves landfills operated by County on three 

2 See Chinatown (Paramount Pictures 1974).
4.

sites leased from LADWP. The landfills are known as the Bishop-Sunland Landfill, the 

Independence Landfill, and the Lone Pine Landfill. 

The Bishop-Sunland Landfill is located on a 120-acre site about two miles 

southwest of Bishop, west of Highway 395. It was established in 1955 and serves Bishop 

and the surrounding unincorporated communities. Its disposal footprint is entirely 

unlined and covers about 78 acres. The site is located on a gently sloping alluvial fan 

elevated about 130 feet above the Owens Valley floor. 

The Independence Landfill is located on a 90-acre site south of Independence, east 

of Highway 395. It was established in 1965 and has a disposal footprint of about 18 

acres. The unlined site is on a gently sloping alluvial fan elevated about 160 feet above 

the floor of the Owens Valley. 

The Lone Pine Landfill is located on approximately 60 acres southeast of the 

unincorporated community of Lone Pine, a mile east of Highway 395. It was established 

in 1965 and its disposal footprint is about 26.6 acres. The unlined site is on a shallow 

alluvial fan at the western edge of the Owens River floodplain, elevated approximately 65 

feet above the river. 

Regulation and Permits

The landfills are operated by Inyo County Recycling and Waste Management. 

The operations are subject to oversight and permits from (1) the Inyo County Department 

of Environmental Health Services; (2) the California Department of Resources Recycling 

and Recovery (CalRecycle); (3) the Regional Water Quality Control Board for the 

Lahontan Region (Lahontan Water Board); and (4) the Great Basin Unified Air Pollution

Control District (Great Basin Air District). 

CalRecycle is the principal permitting authority and has issued a “Solid Waste 

Facility Permit” for each landfill (Operating Permit). The Operating Permits address 

hours of operation; the type and daily maximum tonnage of waste; maximum daily 

vehicle traffic; the landfill’s area, design capacity, maximum elevation, maximum depth; 
5.

and the estimated closure year. Section 44015 requires permits “be reviewed and, if 

necessary, revised at least once every five years.” The operator of a permitted landfill 

cannot modify its design or operation in a manner not authorized by the existing permit 

without obtaining a revised permit. (§ 44004, subds. (a), (b).) The statutory procedures 

for obtaining a revised permit require at least one public hearing and an agency 

determination of whether, before making a decision on the application, review under 

CEQA is necessary. (§ 44004, subds. (d)(5), (h)(1)(A).)

The Inyo County Department of Environmental Health Services, as CalRecycle’s 

local enforcement agency, conducts monthly inspections and takes other action to oversee 

County’s compliance with the Operating Permits. (§§ 40130 [enforcement agency], 

43218 [monthly inspections].) CalRecycle also inspects the landfills periodically. 

Prior to the August 2017 actions of the Inyo County Board of Supervisors that are 

challenged in this litigation, the landfills were subject to Operating Permits issued in 

1999 and 2000. In September 2017, the Inyo County Department of Environmental 

Health Services approved a revised operating permit for the Bishop-Sunland Landfill. 

The Porter-Cologne Water Quality Control Act (Wat. Code, § 13000 et seq.) 

requires each regional board to review and classify operating waste disposal sites within 

its region. (Wat. Code, § 13226.) The Lahontan Water Board issued waste discharge 

permits for the Independence and Lone Pine Landfills in 1996 and for the BishopSunland Landfill in 2001. 

The Great Basin Air District issued County permits to operate for (1) a landfill gas 

collection and treatment system at the Bishop-Sunland Landfill and (2) a grinder at the 

same landfill. The permits include monthly monitoring, periodic unannounced site 

inspections, and annual renewal. 

Prior CEQA Review

In 1999, County’s Department of Environmental Health Services prepared and 

adopted a mitigated negative declaration for each landfill in connection with its 
6.

application for updated operating permits. Each mitigated negative declaration 

concluded that the operation of the landfill, with implementation of the recommended 

mitigation measures, would not result in a significant environmental effect and, thus, 

County was not required to prepare an environmental impact report (EIR) for that 

landfill. 

In 2012, a four-page addendum to the landfills’ three mitigated negative 

declarations was prepared (2012 Addendum). The 2012 Addendum addressed proposed 

amendments to the Operating Permits for the landfills. The amendments included (1) 

increasing the maximum daily disposal tonnage, (2) increasing the average daily tons, (3) 

slightly reducing the total acres in the disposal footprints to reflect updated surveys, and 

(4) changing the estimated closure dates. The 2012 Addendum stated the proposed 

amendments were consistent with the previous mitigated negative declarations and 

related to minor technical changes better reflecting existing landfill operations, new 

regulatory procedures, and improved measurement techniques. The 2012 Addendum 

concluded: “No additional impacts are anticipated not already considered, and no further 

mitigation measures are required.” It also concluded no subsequent environmental 

document was required and it was adequate to comply with CEQA. The permit 

amendments under consideration in 2012 were abandoned.

Revisions to Permits

In 2015, County prepared another set of applications for revisions of the Operating 

Permits. To illustrate the changes—which LADWP characterizes as substantial and 

County regards as minor—the application for the Bishop-Sunland Landfill sought to 

increase peak daily tonnage from 120 to 160 (a 33% increase); increase average daily 

tonnage from 52 to 64.7 (about a 25% increase); increase capacity from approximately 4 

million cubic yards to slightly over 6 million cubic yards (about a 50% increase); and 

accelerate the closure date from 2097 to 2064. Using 2015 as the baseline, the useful life 

of the landfill would shrink from 82 years to 49 years, a decrease of roughly 40 percent. 
7.

In February 2017, County submitted an updated application for the BishopSunland Landfill that sought similar changes. To comply with CEQA for the proposed 

revisions to the landfill’s Operating Permit, County relied upon the 1999 mitigated 

negative declaration and the 2012 Addendum. In a May 2017 letter, the Inyo County 

Department of Environmental Health Services advised CalRecycle that, as the local 

enforcement agency, it “made the finding that the proposed permit is consistent with 

current CEQA documentation. An addendum to the Mitigated Negative Declaration 

(State Clearinghouse No. 1999041076), allowable under the CEQA Guidelines section 

15164, was reviewed and deemed adequate.” In September 2017, the Inyo County 

Department of Environmental Health Services approved the application for revisions of 

the Bishop-Sunland Landfill’s Operating Permit. 

Condemnation Proceedings

On July 17, 2017, County sent LADWP notice of its intention to adopt a resolution 

of necessity for acquisition by eminent domain of the landfill sites. In an agenda request 

form for the August 15, 2017 meeting of County’s Board of Supervisors, County’s staff 

described the 2016 negotiations with LADWP for the renewal of the lease on the BishopSunland Landfill, which included LADWP’s request for a fourfold rent increase to over 

$20,000 per year and a termination clause that would allow LADWP to terminate the 

lease for any reason upon 180 days’ notice. These demands and the future negotiations 

for the other landfills caused County’s staff to “call into question the County’s ability to 

ensure long-term waste management services.” Staff also described certain hardships 

that being a lessee created: 

“The terms of the current Bishop lease hinder[] the County’s ability to 

effectively interact with state agencies having regulatory authority over 

landfill operations. The Bishop lease requires LADWP’s approval for all 

interactions with those regulatory agencies. LADWP interjects itself into 

the regulatory process at every level, requiring approval before submission 

and review of work as it progresses, and LADWP reserves the right to 

ultimately block or revise any action the County wishes to take including 
8.

actions necessary to comply with state regulators. As a result, there are 

delays and uncertainty with respect to all regulatory agency approvals.” 

Staff also set forth concerns about the amount of resources being used to negotiate 

three-year lease terms and the possibility of more restrictive terms in the future. In 

addition, staff stated:

“The terms of the current Bishop-Sunland lease also thwart[] any potential 

cooperative efforts with neighboring counties or municipalities as it 

prohibits the acceptance of any waste from outside of Inyo County 

including Mono County or Mammoth Lakes.” 

Staff described the proposal to acquire fee title to the properties containing the 

landfills and stated County had begun negotiations with LADWP and made offers of just 

compensation based on appraisals of the fair market value of the property rights. Those 

offers had not been accepted and staff recommended using eminent domain to acquire the 

properties through condemnation. 

LADWP notes several subjects were not addressed in the agenda request form 

published before the Board of Supervisors’ meeting. It did not mention the mitigated 

negative declarations for the landfills’ Operating Permits, the 2012 Addendum, any other 

environmental analysis, or how CEQA applied to the proposal. Before the Board of 

Supervisors’ meeting, counsel for LADWP sent County a nine-page letter objecting to 

the proposed resolutions of necessity. 

LADWP’s letter asserted County did not need fee simple ownership for its 

proposed continued operation of the landfills and there was no public necessity for 

County to acquire ownership of appurtenant water rights. The letter also asserted 

“County has historically been lax in its landfill operations and, if left unchecked, its 

operations will likely pose a significant threat to the Owens Valley watershed and 

groundwater that supplies the Owens River and the Los Angeles Aqueduct.” The letter 

listed a variety of regulatory violations that had occurred or were occurring at the 

landfills. Those violations and the remedial action taken need not be described here. 
9.

Page seven of LADWP’s letter contained four paragraphs supporting LADWP’s 

assertion that compliance with CEQA was mandatory before County could condemn the 

properties. On the fundamental CEQA issue of identifying the activity constituting the 

project, LADWP argued the project was not adequately described and, as a result, the 

potential environmental effects of the project could not be adequately evaluated. 

LADWP referred to the illegal use of the Bishop-Sunland Landfill as a site for concrete 

crushing, an activity that created additional truck traffic and dust. LADWP closed the 

CEQA section of the letter by stating:

“Inyo County has stated that it already has plans to increase tonnage, 

expand uses, and correct violations at the Landfill Properties. The impacts 

of these changes in operations must be analyzed before Inyo County can 

acquire the properties. If Inyo County knows the changes that it will be 

making to the Landfill Properties and its operations, it cannot piecemeal the 

projects and delay CEQA review.” 

At the August 15, 2017 public hearing of the Board of Supervisors, counsel for 

LADWP appeared and reiterated its objections. Just before the close of the public 

portion of the meeting, a County staff member addressed the CEQA issue by stating 

County believed the proposed condemnation was exempt from CEQA on at least two 

grounds, including the categorical exemption for ongoing operations at existing facilities 

and the commonsense exemption. He described the project as the condemnation itself 

and not as entailing the creation of a new land use. This appears to be the first time 

County disclosed to the public that it might rely on CEQA exemptions. 

Resolutions of Necessity

The Board of Supervisors unanimously adopted separate resolutions of necessity 

authorizing the condemnation of the three landfill sites for continued landfill purposes. 

The resolutions stated County “intends to continue the use and operation of a landfill, a 

public use, on [the three sites] and, in connection therewith, acquire interests in certain 

real property (the ‘Project’).” The Board of Supervisors explicitly found (1) “[p]ublic 
10.

interest and necessity require the proposed Project”; (2) “[t]he Project is planned and 

located in the manner that will be most compatible with the greatest public good and the 

least private injury”; (3) “[t]he property sought to be acquired is necessary for the 

Project”; (4) “[t]he offer of compensation required by Section 7267.2 of the Government 

Code has been made to the owner or owners of record”; and (5) “[i]nsofar as any of the 

property ... has heretofore been dedicated to a public use, the acquisition and use of such 

property by the County for the purposes identified herein is for a more necessary public 

use than the use to which the property has already been appropriated.”3 The Board of 

Supervisors authorized County Counsel to prepare and prosecute such eminent domain 

proceedings as necessary for the acquisition of the properties. 

Like the agenda request form for the August 2017 public hearing, the Board of 

Supervisors’ resolutions made no mention of CEQA. Although the resolutions defined 

and used the term “ ‘Project,’ ” they did not state that definition applied for purposes of 

CEQA, did not explicitly determine the scope of the project for purposes of CEQA, did 

not set forth any finding relating to CEQA compliance, did not address any CEQA 

exemptions, and did not address the unusual circumstances exception to the exemptions. 

After adoption of the resolutions, County did not file a notice of exemption, which 

would have triggered a 35-day limitations period. (§ 21167, subd. (d); see Guidelines, 

§ 15062, subd. (d) [35-day and 180-day statutes of limitation].) As a result, any action or 

proceeding alleging noncompliance with CEQA was required to be commenced within 

180 days from the date of County’s decision to carry out the project. (§ 21167, subds. 

(a), (d).) Had a notice of exemption been completed and filed, it would have given 

3 Because the “property” to be condemned includes both the land and appurtenant 

water rights, LADWP asserts, in effect, that the phrase “acquisition and use of such 

property by the County” indicates County will use the water rights being condemned. A 

contrary interpretation (i.e., the water right will not be used), in LADWP’s view, would 

mean there is no necessity for acquiring the water rights and, as a result, the resolutions 

contain falsehoods. 
11.

County an opportunity to define the scope of the project for purposes of CEQA and to 

explain the application of the exemptions. 

PROCEEDINGS

In February 2018, LADWP filed a petition for writ of mandate in Inyo County 

Superior Court. The petition alleged County failed to properly identify the true nature 

and scope of the “project,” as that term is used in CEQA. It also alleged County 

improperly determined its approvals of the three resolutions of necessity were 

categorically exempt from CEQA. In May 2018, the case was transferred to Kern County 

Superior Court. 

In February 2020, after discovery and briefing, a hearing was held on the CEQA 

petition. After hearing argument, the court confirmed its tentative ruling to grant a writ 

of mandate directing County to set aside and rescind the three resolutions of necessity 

based on a failure to comply with CEQA. 

In May 2020, the trial court entered a judgment and issued a peremptory writ of 

mandate. The writ directed County to set aside the resolutions of necessity and file a 

return to the writ within 120 days specifying the actions taken to comply with the writ. 

County timely appealed. 

DISCUSSION

The threshold procedural issue in this appeal is whether some of the CEQA 

violations must not be considered because LADWP failed to exhaust its administrative 

remedies before filing a lawsuit. We address the exhaustion question before reaching the 

substantive issues about properly defining the scope of the project, interpreting the 

existing facilities exemption, and applying the commonsense exemption to the properly 

defined project. 
12.

I. EXHAUSTION OF ADMINISTRATIVE REMEDIES

County contends LADWP failed to exhaust available administrative remedies 

because LADWP did not specifically raise some of the alleged CEQA violations and 

other CEQA theories during County’s administrative proceedings. In County’s view, this 

failure deprived the trial court and this court of jurisdiction over those allegations and 

theories. As explained below, we reject County’s interpretation and application of 

CEQA’s exhaustion requirement. (See Sierra Club v. City of Orange (2008) 163 

Cal.App.4th 523, 536 [appellate court uses a de novo standard of review when 

determining whether exhaustion requirement applies].)

A. Statutory Provisions

CEQA explicitly addresses the exhaustion of administrative remedies, containing 

both an issue exhaustion requirement and a party exhaustion requirement. This appeal 

concerns only issue exhaustion, which is addressed in section 21177, subdivision (a): 

“An action or proceeding shall not be brought ... unless the alleged grounds 

for noncompliance with [CEQA] were presented to the public agency orally 

or in writing by any person during the public comment period provided by 

[CEQA] or prior to the close of the public hearing on the project before the 

issuance of the notice of determination.”

The application of this exhaustion requirement is limited by section 21177, 

subdivision (e), which states:

“This section does not apply to any alleged grounds for noncompliance 

with [CEQA] for which there was no public hearing or other opportunity 

for members of the public to raise those objections orally or in writing 

before to the approval of the project, or if the public agency failed to give 

the notice required by law.”

In Tomlinson v. County of Alameda (2012) 54 Cal.4th 281 (Tomlinson), our 

Supreme Court considered the language in subdivisions (a) and (e) of section 21177, and 

concluded the issue exhaustion provision applied only when there was “(1) a public 

comment period provided by CEQA ... or (2) an opportunity for public comment at 

public hearings before issuance of a notice of determination.” (Tomlinson, supra, at p. 
13.

289.) Based on this initial conclusion, the Supreme Court rejected a broad rule that the 

exhaustion requirement in section 21177 never applies to a public agency’s decision that 

a project is categorically exempt from compliance with CEQA. (Tomlinson, supra, at p. 

289.)

Addressing the public-comment-period prong of section 21177, subdivision (a), 

the court stated that “CEQA does not provide for a public comment period preceding an 

agency’s exemption determination.” (Tomlinson, supra, 54 Cal.4th at p. 289.) As a

result, the first prong does not make the issue exhaustion requirement applicable to a

public agency’s exemption determination. Consequently, for purposes of this appeal, the 

issue exhaustion requirement will apply to LADWP only if, as required by the second 

prong, there was “an opportunity for public comment at public hearings before issuance 

of a notice of determination.” (Tomlinson, supra, at p. 289.) 

Not every public hearing constitutes an “opportunity” for members of the public to 

raise a particular objection—that is, raise “alleged grounds for noncompliance with 

[CEQA]” as that phrase is used in section 21177, subdivision (e). Consistent with basic 

principles of due process, the notice given before a public hearing has a role in defining 

the opportunity provided to the public. (See Mathews v. Eldridge (1976) 424 U.S. 319, 

333 [the essence of due process is notice and the opportunity to be heard at a meaningful 

time and in a meaningful manner].) 

The Supreme Court addressed the relationship between notice and an opportunity 

for public comment at a hearing and concluded “that the exhaustion-of-administrativeremedies requirement set forth in subdivision (a) of section 21177 applies to a public 

agency’s decision that a proposed project is categorically exempt from CEQA 

compliance as long as the public agency gives notice of the ground for its exemption 

determination, and that determination is preceded by public hearings at which members 

of the public had the opportunity to raise any concerns or objections to the proposed 

project.” (Tomlinson, supra, 54 Cal.4th at p. 291, italics added; see Hines v. California 
14.

Coastal Com. (2010) 186 Cal.App.4th 830, 854 [issue exhaustion provision applies when 

there is ample notice of public hearing].) 

Whether CEQA’s exhaustion requirements apply to a public agency’s exemption 

determinations is addressed in a practice guide that states “the critical factor is whether a 

hearing or opportunity to raise objections is provided. [Citation.] Thus, when no 

opportunity to express objections to a claimed exemption is provided by the agency, the 

exhaustion requirement does not apply. [Citations.] When an agency holds a hearing but 

does not provide adequate notice that a CEQA exemption will be considered, the 

requirement to exhaust remedies on the CEQA claim does not apply.” (2 Kostka & 

Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar. 2d ed. 2020) 

§ 23.105, pp. 23-121 to 23-122, italics added.) The practice guide cited Defend Our 

Waterfront v. State Lands Com. (2015) 240 Cal.App.4th 570 (Defend Our Waterfront) as 

support. In that case, the agenda for the meeting “did not notify anyone that [the lead 

agency] would also consider invoking a statutory exemption to CEQA.” (Id. at pp. 583–

584.) 

B. Lack of Adequate Notice

LADWP contends County did not provide notice of its grounds for CEQA

compliance before the hearing and, therefore, those grounds can be challenged in a 

lawsuit without complying with the exhaustion requirement. In response, County does 

not argue its notice adequately apprised the public of the CEQA issues that would be 

addressed at the hearing. Instead, County argues subdivision (e) of section 21177 does 

not apply because, among other things, CEQA does not require a public notice of the type 

asserted by LADWP. 

The issue of statutory construction raised by the parties’ contentions is whether the 

public hearing held by County provided an “opportunity for members of the public to 

raise” the CEQA objections to County’s reliance on the existing facilities exemption and 
15.

commonsense exemption. (§ 21177, subd. (e).) Our Supreme Court addressed the 

meaning of this statutory text when it stated that the issue exhaustion requirement 

“applies to a public agency’s decision that a proposed project is categorically exempt 

from CEQA compliance as long as the public agency gives notice of the ground for its 

exemption determination.” (Tomlinson, supra, 54 Cal.4th at p. 291, italics added.) In 

other words, the requisite opportunity is not provided when the public “agency holds a 

hearing but does not provide adequate notice that a CEQA exemption will be 

considered.” (2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, 

supra, § 23.105, p. 23-122, italics added.) We agree with the practice guide’s conclusion 

that notice must be adequate. Accordingly, we conclude the Supreme Court used the 

term “gives notice” to mean gives adequate notice. (Tomlinson, supra, 54 Cal.4th at p. 

291.) A contrary interpretation that concludes the court meant “gives notice, whether 

adequate or not,” is unreasonable. 

Under the facts presented, we conclude County did not provide adequate notice 

that CEQA exemptions would be considered at the public meeting. First, the agenda 

request form for the August 2017 hearing of County’s Board of Supervisors did not 

mention CEQA or any exemption. (See Defend Our Waterfront, supra, 240 Cal.App.4th 

at pp. 583–584 [meeting’s agenda did not notify anyone the lead agency would consider a 

statutory exemption].) Second, County’s appellate briefing cites nothing in the 

administrative record showing the public was notified before the hearing of County’s 

possible reliance on CEQA exemptions. Thus, it appears the first disclosure or notice 

occurred just before the close of the public portion of the August 2017 hearing when a 

County staff member stated that County believed the proposed condemnation was exempt 

from CEQA under the existing facilities exemption and the commonsense exemption. 

We conclude as a matter of law that such a disclosure near the end of the hearing does not 

constitute adequate notice to the public that a CEQA exemption will be considered. 
16.

Consequently, nothing in the administrative record establishes that County gave 

the notice necessary to provide an “opportunity for members of the public to raise ... 

objections” to County’s reliance on the two CEQA exemptions. (§ 21177, subd. (e).) As 

a result, the issue exhaustion requirement in section 21177, subdivision (a) does not apply 

to LADWP’s challenges to County’s reliance on those exemptions. The trial court 

correctly concluded it had jurisdiction to consider those challenges. 

II. THE CEQA PROJECT*

A. Standards of Judicial Review

Judicial review of County’s compliance with CEQA is governed by the abuse of 

discretion standard set forth in section 21168.5. Consequently, our “inquiry shall extend 

only to whether there was a prejudicial abuse of discretion. Abuse of discretion is 

established if the agency has not proceeded in a manner required by law or if the 

determination or decision is not supported by substantial evidence.” (§ 21168.5; see 

Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511.)

This statutory text identifies two ways an abuse of discretion can occur, each of 

which has its own standard of review. First, the public agency could fail to proceed in

the manner required by CEQA, thereby committing procedural error. Whether the public 

agency has employed the correct procedures—that is, followed applicable law—is 

subject to independent judicial review. (Sierra Club v. County of Fresno, supra, 6 

Cal.5th at p. 512.) 

Second, the public agency could abuse its discretion by making findings of fact 

unsupported by substantial evidence. When the agency acts in its role as the finder of 

facts, its findings are subject to deferential review under the substantial evidence 

standard. (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 512.) 

* See footnote, ante, page 1.
17.

B. Overview of CEQA’s Environmental Review Process

There are three stages of environmental review established by CEQA. (King & 

Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 885; see Guidelines, 

§ 15002, subd. (k) [three-step process].) In the first stage, the agency conducts a 

preliminary review to determine if the proposed activity is a CEQA project and, if so, 

whether it is exempt from CEQA. (King & Gardiner Farms, supra, at p. 885.) If the 

proposed activity is a project and is not exempt, the agency must proceed to the second 

stage.4 In contrast, if the agency determines the project is exempt, no further 

environmental analysis is required, and the agency may file a notice of exemption. 

(Guidelines, § 15002, subd. (k)(1).)5 

Here, County determined the condemnation proceedings were exempt from 

CEQA. Therefore, we consider whether County properly completed the first stage of 

CEQA’s environmental review process when it (1) described the project and (2) 

determined exemptions applied. 

C. Defining a Project and Its Scope

1. Definition of a CEQA Project

CEQA applies to “discretionary projects proposed to be carried out or approved by 

public agencies.” (§ 21080, subd. (a).) CEQA broadly defines a “project” as “an activity 

which may cause either a direct physical change in the environment, or a reasonably 

foreseeable indirect physical change in the environment, and which is ... [¶] ... (a) [a]n 

4

In the second stage, the agency completes an initial study and decides whether the 

environmental review can be concluded with the adoption of a negative declaration or, 

alternatively, whether the agency must proceed to the third stage and prepare an 

environmental impact report (EIR). (King & Gardiner Farms, supra, 45 Cal.App.5th at 

p. 885.) 

5 Public agencies are not required to file a notice of exemption, but a shorter statute 

of limitations applies if they do. (See § 21167, subd. (d); Guidelines, § 15062, subd. (d) 

[filing a notice of exemption starts a 35-day limitations period; otherwise, a 180-day 

statute of limitations applies].) 
18.

activity directly undertaken by any public agency.” (§ 21065.) An example of a project 

is the enactment or amendment of a zoning ordinance. (§ 21080, subd. (a).)

The statutory definition is augmented by the Guidelines, which state a “project” is 

“the whole of an action, which has a potential for resulting in either a direct physical 

change in the environment, or a reasonably foreseeable indirect physical change in the 

environment....” (Guidelines, § 15378, subd. (a).) The Guidelines provide examples of 

projects undertaken directly by a public agency, such as “public works construction and 

related activities clearing or grading of land, improvements to existing public structures, 

... and the adoption and amendment of local General Plans or elements thereof.” 

(Guidelines, § 15378, subd. (a)(1).) “The term ‘project’ refers to the activity which is 

being approved and which may be subject to several discretionary approvals by 

governmental agencies. The term ‘project’ does not mean each separate governmental 

approval.” (Guidelines, § 15378, subd. (c).) 

2. Timing of CEQA Review

Our Supreme Court has endorsed the view that CEQA contemplates consideration 

of environmental consequences at the earliest possible stage, even though more detailed 

environmental review may be necessary later. (Environmental Protection Information 

Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 503.) 

Consistent with this view, CEQA’s requirements cannot be avoided by chopping a large 

project with significant adverse consequences into many little ones—each with a minimal 

potential impact on the environment. (Ibid.; Rio Vista Farm Bureau Center v. County of 

Solano (1992) 5 Cal.App.4th 351, 370.) Piecemeal review is contrary to CEQA’s 

requirements. In contrast, where future development is unspecified and uncertain, no 

purpose can be served by requiring an environmental review that engages in sheer 

speculation as to future environmental consequences. (Environmental Protection 

Information Center, supra, at p. 503.)
19.

3. Issues of Law Presented

The application of the foregoing definitions and principles requires a court to 

answer two basic questions. The court first must determine which activities constitute the 

whole of the action—that is, which activities are properly treated as part of the project 

and which activities are not. Once that question is resolved, the whole of the activity can 

be evaluated to determine whether it qualifies as a “project” for purposes of CEQA. 

In Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora

(2007) 155 Cal.App.4th 1214 (Tuolumne), we stated that no published opinion had 

“addressed explicitly the question whether a determination of the scope of an activity is 

reviewed as either a question of law or a question of fact.” (Id. at p. 1224.) We 

concluded “that the question concerning which acts constitute the ‘whole of an action’ for 

purposes of Guidelines section 15378 is a question of law that appellate courts 

independently decide based on the undisputed facts in the record.” (Ibid.) Ten years 

later, we confirmed our “conclusion that the question of which acts make up the whole of 

the action constituting the CEQA project is a question of law (i.e., is not a discretionary 

determination) resolved without deference to the agency’s determination.” (POET, LLC 

v. State Air Resources Bd. (2017) 12 Cal.App.5th 52, 100 (POET II).)6 “Whether two 

activities are parts of a single project is a question for our independent review.” (County 

of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, 385; see Paulek v. 

Department of Water Resources (2014) 231 Cal.App.4th 35, 46 [“Whether a project has 

received improper piecemeal review is a question of law that we review 

independently”].)

After the whole of the activity is identified, the question of whether the entire 

activity is a project for purposes of CEQA “is an issue of law that can be decided on 

6 County’s appellate briefs have not cited Tuolumne or POET II and, thus, have not 

argued the rule of law adopted in those decisions is wrong. County is aware of Tuolumne

because trial court cited that decision in its tentative ruling from the bench. 
20.

undisputed data in the record on appeal.” (Muzzy Ranch Co. v. Solano County Airport 

Land Use Com. (2007) 41 Cal.4th 372, 382 (Muzzy Ranch).) 

D. Scope of This Project

1. Contentions of the Parties

County contends it properly initiated condemnation of each landfill site “[a]nd it 

certainly did not need to conduct CEQA review of future changes that the County has not 

even proposed, such as the digging of new groundwater wells or the importing of waste 

from adjacent counties.” County also contends “there is ample ‘substantial evidence’ in 

the record demonstrating that the County’s mere acquisition of the Landfill Sites will not 

itself result in any environmental changes.” These contentions imply that “the whole of 

[the] action” constituting the project is limited to the acquisition of the landfill sites 

through condemnation proceedings. (Guidelines, § 15378, subd. (a).) 

LADWP contends County mischaracterized the project as a mere change in 

ownership and violated CEQA by omitting integral components and foreseeable 

consequences. LADWP argues County’s “inaccurate Project description omits several 

integral parts, including critical information about: (1) the nature and extent of the 

Project; (2) the development of new groundwater rights; (3) the acquisition of property 

with existing and threatened soil and groundwater contamination; (4) the expansion of 

permitted daily tonnage and site capacity; (5) the import of waste; and (6) the remaining 

operational life of the Landfills.” 

2. Trial Court’s Decision

The trial court’s tentative ruling stated County’s description of the project as a 

mere transfer of property ownership impermissibly omitted reasonably foreseeable 

consequences of the project. The court concluded those consequences were (1) the 

development and use of groundwater below the three landfills; (2) the importation of 

waste from other counties; and (3) an increase in the tonnage of waste deposited in the 
21.

landfills. In addition, the court determined “the record is ambiguous with contradictory 

evidence as to the estimated closing dates or operational life of the landfills without any 

explanation for these discrepancies.” The court stated the estimated closure dates were 

important to the landfill’s life span, which directly affected the nature and scope of the 

project. As a result, the court found County’s “description with regard to the life 

expectancy or estimated closing date is fundamentally inadequate and misleading.” 

3. Water Rights

The first subject we consider is water, which includes its source and use. The 

resolutions of necessity stated County’s intent “to continue the use and operation of a 

landfill ... and, in connection therewith, acquire interests in” the three landfill sites. The 

interest “to be acquired consists of a fee interest in the” landfill sites. This reference to a 

“fee interest” plainly establishes that County intends to acquire ownership of the land and 

the appurtenant water rights. 

At the August 2017 public hearing, Assistant County Administrator Rick Benson 

stated that “to run a landfill, we need water, and the lease has terms in it where we – [the]

value of the water is in there, but we do not have a water source that we can rely on in 

order to be able to provide for the operation of the landfill and you cannot operate a 

landfill without water.” Because the project includes the continued use and operation of 

the landfills, it logically follows that the whole of the action includes obtaining the water 

necessary to run the landfills. (See RiverWatch v. Olivehain Municipal Water Dist.

(2009) 170 Cal.App.4th 1186, 1204 [“the activity of trucking recycled water ... to the 

Landfill site is part of the whole action or operations of the landfill project for purposes 

of CEQA”].) County, which treated the project as a mere change in title to the land, did 

not identify the source of the water for the continued operation of the landfills. 

County’s omission of the sources of water for its continued operation of the 

landfills is significant in this case because the Bishop-Sunland Landfill (the largest of the 
22.

three landfills) obtained water from domestic well D-126, which is located on a LADWP 

parcel adjacent to the landfill site. County’s current access to that well is governed by the 

lease with LADWP. Whether domestic well D-126 will remain available to County after 

the condemnation proceedings are completed and the lease is terminated is uncertain. At 

the August 2017 hearing, Richard Harasick, Senior Assistant General Manager of Water 

for LADWP, referred to an offer made by LADWP for the sale of the landfill sites which 

included LADWP providing “a reliable source of water in sufficient quantity” for the 

landfills. The terms of the offer, which were not accepted by County, do not demonstrate 

that LADWP will reach an agreement with County to continue to provide water from 

domestic well D-126 in the event the condemnation proceedings are completed. In other 

words, it is reasonably foreseeable that County will need to obtain water from a different 

source once it becomes the owner of the parcel containing the Bishop-Sunland Landfill.7 

To define the scope of the CEQA project at this stage of the environmental review 

process (i.e., the preliminary review or first stage), we only need identify the activities 

that constitute “the whole of [the] action” (Guidelines, § 15378, subd. (a)) and then 

determine whether County included those activities in its project description. The fact 

that County’s water source for the continued operation of the Bishop-Sunland Landfill

has not been identified does not mean the need to secure a water source is not part of the 

project. Securing a water source is integral to the project because, as stated by Benson, a 

landfill cannot be operated without water. (See Tuolumne, supra, 155 Cal.App.4th at p. 

1229 [“when one activity is an integral part of another activity, the combined activities 

are within the scope of the same CEQA project”].) As a result, the continued operation 

7 While it is reasonably foreseeable that County and LADWP might reach an 

agreement that allows County to obtain water from LADWP’s existing well, it also is 

reasonably foreseeable that County might (1) develop the groundwater rights acquired in 

the condemnation proceeding and drill a well on the parcel containing the BishopSunland Landfill or (2) use an alternate source or sources. 
23.

of the Bishop-Sunland Landfill “is dependent upon, not independent of,” securing a water 

source. (Id. at p. 1231.) Consequently, we reach the legal conclusion that the activities 

constituting the project include securing a water source for the Bishop-Sunland Landfill. 

Next, we consider whether it was reasonably foreseeable that County might 

develop the rights to groundwater it proposes acquiring in connection with the other 

landfills. The possibility of condemning the land without the water rights was raised at 

the August 2017 public hearing. Despite this less expensive course of action, the Board 

of Supervisors chose to authorize the condemnation of a fee interest in those sites. Item 

4.c. in each of the three resolutions stated: “The property sought to be acquired is 

necessary for the Project.” Item 4.e. of each resolution stated that “the acquisition and 

use of such property by the County for the purposes identified herein is for a more 

necessary public use than the use to which the property has already been appropriated.” 

(Italics added.) The Board of Supervisor’s decision to include the water rights in the 

property to be condemned and the wording of the resolutions indicates that the water 

rights are necessary and will be used. Furthermore, the decision to include the water 

rights, when considered in light of the surrounding circumstances, establishes the 

development of the water rights being acquired is reasonably foreseeable.

It is plain from the record that County did not include securing a source of water 

for the continued operation of the Bishop-Sunland Landfill in its description of the 

project and did not include the development of the groundwater rights at the other sites. 

Therefore, County failed to proceed in the manner required by CEQA when it described 

the project. Specifically, County did not include “the whole of [the] action” (Guidelines, 

§ 15378, subd. (a)) in its description. The legal (i.e., procedural) error of adopting an 

inappropriately narrow view of the project constitutes an abuse of discretion for purposes 

of section 21168.5. 
24.

4. Importing Waste

The second subject we consider is the possibility that County would allow solid 

waste from neighboring counties to be deposited in the landfills once it acquires 

ownership of the sites through eminent domain. Section 10 of the lease for the BishopSunland Landfill provides that County “shall not import waste originating outside Inyo 

County without Lessor’s prior written consent.” The agenda request form for the August 

2017 public hearing addressed this lease provision by stating: “The terms of the current 

Bishop-Sunland lease also thwart[] any potential cooperative efforts with neighboring 

counties or municipalities as it prohibits the acceptance of any waste from outside of Inyo 

County including Mono County or Mammoth Lakes.” This subject also was addressed 

by Benson at the public hearing when he stated:

“Another term of the lease is that we would be prohibited from taking any 

other county’s waste. Now, we are not and nor have we ever been 

interested in becoming a waste disposal center for the State of California, 

but what this does is it thwarts our ability to work with our neighbors, to 

work with Mono County or with Mammoth Lakes on possibly -- if 

something makes sense and it might be to everyone’s advantage -- to have 

waste come to our landfill. We’re precluded from even going there per the 

terms of the lease.” 

Based on the agenda request form and Benson’s statements at the public hearing, a 

reasonably foreseeable consequence of County successfully condemning the landfills is 

an expansion of those operations to include the acceptance of solid waste from sources 

outside Inyo County. Because County did not include this reasonably foreseeable 

activity in its description of the project, its description did not include “the whole of [the] 

action.” (Guidelines, § 15378, subd. (a).) As a result, County failed to proceed in the 

manner required by CEQA and this legal (i.e., procedural) error constitutes a further 

abuse of discretion for purposes of section 21168.5. 
25.

E. Summary

County failed to comply with CEQA when it described the proposed project as 

simply a change in ownership or the mere acquisition of the landfill sites. County’s 

errors in describing the proposed project tainted its reliance on the exemptions claimed, 

our next subject.

III. CEQA EXEMPTIONS

County relies on the categorical exemption for existing facilities (Guidelines, 

§ 15301) and the commonsense exemption (Guidelines, § 15061, subd. (b)(3)). CEQA’s 

categorical exemptions are set forth in sections 15301 to 15333 of the Guidelines. 

Categorical exemptions are authorized by section 21084, subdivision (a), which states:

“The guidelines prepared and adopted pursuant to Section 21083 shall 

include a list of classes of projects that have been determined not to have a 

significant effect on the environment and that shall be exempt from this 

division. In adopting the guidelines, the Secretary of the Natural Resources 

Agency shall make a finding that the listed classes of projects referred to in 

this section do not have a significant effect on the environment.” 

When a lead agency determines that a project is exempt from CEQA, that 

determination is subject to judicial review under the standards contained in section 

21168.5 and described in part I.B. of this opinion. The application of these standards to 

an exemption determination was discussed in Berkeley Hillside Preservation v. City of 

Berkeley (2015) 60 Cal.4th 1086 (Hillside). There, the project proponents wanted to 

build a large house and 10-car garage on their steeply sloping lot. (Id. at p. 1093.) The 

city council affirmed the zoning board’s approval of a use permit for the project. A 

notice of exemption was filed, stating the project was categorically exempt under two 

Guideline provisions and the unusual circumstances exception in Guidelines section 

15300.2 did not apply. (Hillside, supra, at p. 1096.) The Supreme Court identified two 

potential abuses of discretion, stating that “reversal of the City’s action here is 

appropriate only if (a) the City, in finding the proposed project categorically exempt, did 
26.

not proceed in the manner required by law, or (b) substantial evidence fails to support 

that finding.” (Id. at p. 1110.) 

In accordance with Hillside, we independently review whether County proceeded 

in the manner required by law in making its exemption determination and apply the 

substantial evidence test to the County’s findings of fact. Stated from another 

perspective, an appellate court “must first determine as a matter of law the scope of the 

exemption and then determine if substantial evidence supports the agency’s factual 

finding that the project fell within the exemption.” (California Farm Bureau Federation 

v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 185.) This appeal 

raises a legal question about the scope of the existing facilities exemption, which requires 

us to interpret the words used in Guidelines section 15301. 

A. Existing Facilities

1. Regulatory Text

The existing facilities exemption is designated “Class 1” and covers “the 

operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of 

existing public or private structures, facilities, mechanical equipment, or topographical 

features, involving negligible or no expansion of existing or former use.” (Guidelines, 

§ 15301.) “The key consideration is whether the project involves negligible or no 

expansion of use.” (Guidelines, § 15301; see Communities for a Better Environment v. 

South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 326 [“the continued 

operation of an existing facility without significant expansion of use ... [is] exempt from 

CEQA review under CEQA Guidelines section 15301”].)

2. Dispute Over the Meaning of the Term “Facilities”

The parties offer different interpretations of Guidelines section 15301’s term 

“facilities.” LADWP argues the term excludes unlined landfills and, therefore, the 

existing facilities exemption does not apply to County’s project. As support, LADWP 
27.

relies on the interpretation adopted by the court in Azusa, supra, 52 Cal.App.4th 1165. In 

that case, the Second District concluded “[t]he categorical exemption for an existing 

facility should not be construed to include a large, municipal waste landfill.” (Id. at p. 

1192, italics omitted.) In contrast, County argues the existing facilities exemption applies 

and asserts LADWP made “no effort to address the facts in Azusa, which are strikingly 

different from this case.” 

3. The Term “Facilities” Is Ambiguous

The Guidelines are administrative regulations and, as a general rule, are subject to 

the same rules of interpretation as statutes. (Hillside, supra, 60 Cal.4th at p. 1097 [rules 

governing interpretation of statute also govern interpretation of Guidelines].) 

Accordingly, the first step in analyzing the meaning of a provision in the Guidelines is 

determining whether the language used is ambiguous. (Gutierrez v. Carmax Auto 

Superstores California (2018) 19 Cal.App.5th 1234, 1249 (Gutierrez) [first question of 

statutory interpretation is whether the statute’s language is ambiguous].) “Ambiguous” 

means reasonably susceptible to more than one meaning. (See Estate of Newmark (1977) 

67 Cal.App.3d 350, 355 [“ambiguity exists in a written instrument when its language is 

properly susceptible to multiple constructions”].) This threshold inquiry into ambiguity 

also is made when construing contracts and other written instruments. (E.g., Smith v. 

Adventist Health System/West (2010) 182 Cal.App.4th 729, 754–755 [court’s threshold 

question when interpreting a contract is whether the writing is ambiguous].)

In Azusa, the Second District explicitly addressed this threshold question and 

concluded: “The language of the exemption for an existing ‘facility’ is ambiguous with 

respect to its application to a solid waste landfill.” (Azusa, supra, 52 Cal.App.4th at p. 

1192.) The court noted the Guidelines did not define the term and then considered two 

dictionary definitions of “facility”—one of which stated a facility is something “ ‘built or 

installed to perform some particular function.’ ” (Id. at p. 1193.) The court stated: “A 
28.

landfill, however, is excavated, and a ‘facility’ is not necessarily inclusive of a landfill.” 

(Ibid.) 

County’s appellate briefing does not address the threshold question of whether the 

term “facilities” used in Guidelines section 15301 is ambiguous. However, an amicus 

curiae brief asserts “that much of Azusa’s analysis on this point has not aged well—and 

some was not well taken even in 1997.” The brief argues modern landfills are not merely 

excavated pits but include many structures built or installed such as gate houses, scales, 

tipping floors, gas recovery systems, and administrative buildings. The brief also asserts 

that whatever ambiguities the term “facility” may have in some contexts, this is not one 

of them because landfills are routinely referred to as facilities in both common and 

technical usage. This assertion is supported by cites to statutes, judicial opinions and 

other Guideline provisions that refer to landfills as facilities. (See §§ 40194, 40195.1; 

County of San Diego v. Ace Property & Casualty Ins. Co. (2005) 37 Cal.4th 406, 411; 

Guidelines, §§ 15186, subd. (c)(1)(A) & 15282, subd. (q).) In response to the amicus 

curiae brief, LADWP glosses over the threshold question of ambiguity and argues 

“neither the Azusa court nor the Trial Court adopted a blanket interpretation of the 

exemption.” 

In deciding whether the term “facilities” is ambiguous, we do not look at that word 

in isolation, but consider it in the context of the statutory and regulatory scheme as a 

whole. (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 

Cal.4th 733, 737.) The 32 other categorical exemptions provide part of that context. 

Class 2 covers certain replacements or reconstructions of existing structures or facilities. 

(Guidelines, § 15302.) Class 4 covers “minor public or private alterations in the 

condition of land.” (Guidelines, § 15304.) Class 13 covers “the acquisition of lands for 

fish and wildlife conservation purposes.” (Guidelines, § 15313.) Class 16 covers certain 

acquisitions or transfers of land to establish a park. (Guidelines, § 15316.) Class 25 

covers certain transfers of ownership of interests in land to preserve open space, habitat 
29.

or historical resources. (Guidelines, § 15325.) Class 33 covers projects not exceeding 

five acres that “assure the maintenance, restoration, enhancement, or protection of habitat 

for fish, plants or wildlife” where certain conditions are met. (Guidelines, § 15333.) 

One way to interpret these categorical exemptions is to start with the idea that the 

classes tend to be mutually exclusive and, therefore, if an activity is potentially covered 

by one exemption it probably falls outside the coverage of the other exemptions.8 For 

example, the operation of a facility and an alteration in the condition of land are probably 

different things. Here, we consider whether a landfill is best described (1) by the term 

“facilities,” (2) by the phrase “alteration[] in the condition of land” that is contained in 

the Class 4 exemption for minor alterations in the condition of land, or (3) as including 

some components that are facilities and some components that are alterations in the 

condition of land. (Guidelines, §§ 15301, 15304.) If some or all of operation of a landfill 

can be logically described as an alteration in the condition of land, it increases the 

probability that the operation (or a portion of the operation) it is not properly described as 

the operation of a facility. 

Our evaluation of whether the operation (or a portion of the operation) of a landfill 

might be reasonably described as an “alteration[] in the condition of land” includes an 

examination of the examples provided in Guidelines section 15304. Excluding the 

modifiers that render them “minor,” the examples include “[g]rading on land,” “[f]illing 

of earth into previously excavated land,” and “trenching and backfilling.” (Guidelines, § 

15304, subds. (a), (c), (f).)9 We conclude, based on the plain meaning of the phrase 

8 Our examination of the threshold question of ambiguity considers possibilities and 

probabilities because that question is answered by identifying interpretations to which the 

term “facilities” is reasonably susceptible. (See Gutierrez, supra, 19 Cal.App.5th at p. 

1249.) 

9 Landfill operations do not qualify for the exemption because the alterations to the 

land are not “minor.” For instance, to be minor, the “[f]illing of earth into previously 
30.

“alteration[] in the condition of land” and these examples, that it is reasonable to treat 

landfill operations as including activity that is more accurately characterized as altering 

the condition of land rather than as consisting only of the operation of facilities. For 

instance, the term “facilities” could be viewed as including many of the structures at a 

landfill, such as gate houses, scales, tipping floors, gas recovery systems, and 

administrative buildings, but excluding the pit holding the alternating layers of solid 

waste and dirt, which is an alteration in the condition of land. 

Accordingly, we cannot conclude that the entirety of the operation of a landfill 

unambiguously qualifies as the operation of facilities for purposes of Guidelines section 

15301. Instead, we conclude it is reasonable to characterize landfill operations as 

involving an alteration in the condition of land rather than exclusively as the operation of 

a facility or facilities. Therefore, the term “facilities” is reasonably susceptible to 

multiple interpretations with respect to its application to a landfill. Consequently, we 

resolve the threshold question by concluding the term “facilities” is ambiguous. (Azusa, 

supra, 52 Cal.App.4th at p. 1192 [same].)

4. Resolving the Ambiguity

Having decided the term is ambiguous in its application to landfills, the next step 

is to resolve that ambiguity. Generally, a court’s primary goal when construing a statute 

or regulation is to adopt the interpretation that best effectuates the legislative and 

regulatory intent or purpose. (See Gutierrez, supra, 19 Cal.App.5th at p. 1250.) To 

identify the best interpretation, courts consider information from a variety of sources. 

(Ibid.) The most obvious source to be considered when interpreting language in a 

categorical exemption is the provision in CEQA that authorized the creation of 

categorical exemptions. (Azusa, supra, 52 Cal.App.4th at p. 1192 [exemption should be 

excavated land” must use “material compatible with the natural features of the site.” 

(Guidelines, § 15304, subd. (c).) 
31.

construed in light of statutory authorization].) Based on this statutory foundation, the 

term “facilities” should not be broadly interpreted “to include a class of businesses that 

will not normally satisfy the statutory requirements for a categorical exemption, even if 

the premises on which such businesses are conducted might otherwise come within the 

vague concept of a “ ‘facility.’ ” (Id. at pp. 1192–1193.) Instead, a categorical 

exemption should be interpreted narrowly to afford the fullest possible protection to the 

environment within the reasonable scope of the statutory language. (Save Our Carmel 

River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 697; 

see Guidelines, § 15003, subd. (f).)

The statutory language authorizes categorical exemptions for “classes of projects 

that have been determined not to have a significant effect on the environment” and states 

“the Secretary of the Natural Resources Agency shall make a finding that the listed 

classes of projects referred to in this section do not have a significant effect on the 

environment.” (§ 21084, subd. (a).) Nothing in the record before this court shows the 

Secretary made an explicit finding, one way or the other, about whether landfills fit into 

the class of existing facilities that should be exempt from CEQA. 

The record does contain materials that support inferences about the Secretary’s 

view of whether the existing facilities exemption includes landfills. Those materials 

relate to the 1998 revisions to the Guidelines—including amendments to Guidelines 

section 15301—and we have taken judicial notice of them. A September 22, 1997 

memorandum from Maureen F. Gorsen and Steve Greene to Douglas P. Wheeler, the 

Secretary of the Natural Resources Agency from 1991 to 1999, and Jim Branham stated 

documents were attached to “facilitate your decision-making on all aspects of the 

proposed 1997-98 CEQA Guidelines revisions.” Section 6 of the third attachment 

described the content of the proposed revisions to the categorical exemptions. The 

description of the changes to Guidelines section 15301 stated in full:
32.

“Section 15301 - Adds permitting and licensing of existing facilities; 

clarifies the baseline for application of the exemption (at time of agency’s 

determination); attempts to deal with the misreading of this section by the 

court in the Azusa Land Reclamation Co. case by clarifying that the list of 

potential types of Class 1 projects is not all-inclusive; adds ‘use of a singlefamily residence as a small family day care home’ as an additional Class 1 

example.” 

The reference to Azusa is the only mention of that case in the materials related to 

the 1998 revisions to the Guidelines. The reference is significant because it shows 

Secretary Wheeler and his staff were aware of Azusa. It also shows staff thought the 

Azusa court had misread one specific aspect of Guidelines section 15301 and supports the 

inference that staff did not think the Azusa court’s conclusions that the term “facilities” 

was ambiguous and did not include landfills, warranted criticism or a clarifying 

amendment. As a result of the reference to Azusa and the fact the revisions to Guidelines 

section 15301 adopted by the Secretary did not address landfills, we conclude neither 

staff nor the Secretary disagreed with the Azusa court’s conclusion that the term 

“facilities” excluded landfills. (See Azusa, supra, 52 Cal.App.4th at p. 1192.) 

In Azusa, the court’s analysis of landfills as a class included a reference to the 

1989 legislative fining that “[o]ver 90 percent of California’s solid waste currently is 

disposed of in landfills, some of which pose a threat to groundwater, air quality and 

public health.” (§ 40000, subd. (b).) Based on this finding, the court concluded “that 

landfills do not constitute a suitable class of properties for a categorical exemption, and 

the Class 1 exemption for the operation and minor alteration of existing facilities should 

therefore not be construed to include such landfills.” (Azusa, supra, 52 Cal.App.4th at p. 

1195.) 

We agree that the legislative finding that some landfills pose a threat to 

groundwater, air quality and public health justifies the conclusions that unlined landfills 

do not constitute a suitable class for a categorical exemption. Consequently, in view of 

the basic principle that categorical exemptions should be interpreted narrowly to afford 
33.

the fullest possible protection to the environment within the reasonable scope of the 

statutory language, we conclude the ambiguous term “facilities” should be interpreted to 

exclude unlined landfills.10 This construction of Guidelines section 15301 leads to the 

conclusion that the three landfills in question do not fall within the scope of the 

categorical exemption for existing facilities. Therefore, County proceeded in a manner 

contrary to law when it concluded that exemption applied to the project. 

B. Unusual Circumstances Exception*

The trial court’s decision was thorough and considered whether the unusual 

circumstances exception precluded County from relying on a categorical exemption. The 

trial court determined “there is substantial evidence that supports finding a reasonable 

possibility that the project will result in a significant environmental impact.” County 

contends it clearly determined, in its role as lead agency, that the “mere acquisition of the 

Landfill Sites did not raise any unusual circumstances” because County was already 

occupying and using those sites and the only change was County becoming an owner 

instead of a tenant. 

Guidelines section 15300.2, subdivision (c) states: “A categorical exemption shall 

not be used for an activity where there is a reasonable possibility that the activity will 

have a significant effect on the environment due to unusual circumstances.” When a 

project meets “the requirements of a categorical exemption, a party challenging the 

exemption has the burden of producing evidence supporting an exception.” (Hillside, 

supra, 60 Cal.4th at p. 1105.) There are two ways a party, such as LADWP, may 

establish the unusual circumstances exception applies. First, the party may show that 

“the project has some feature that distinguishes it from others in the exempt class, such as 

10 Based on the facts of this case and those in Azusa, which also involved an unlined 

landfill, we need not address the broader question of whether the term “facilities” also 

excludes lined landfills.

* See footnote, ante, page 1.
34.

its size or location. In such a case, to render the exception applicable, the party need only 

show a reasonable possibility of a significant effect due to that unusual circumstance.” 

(Ibid.) Second, “a party may establish an unusual circumstance with evidence that the 

project will have a significant environmental effect. That evidence, if convincing, 

necessarily also establishes ‘a reasonable possibility that the activity will have a 

significant effect on the environment due to unusual circumstances.’ (Guidelines, § 

15300.2, subd. (c).)” (Hillside, supra, 60 Cal.4th at p. 1105.)

Here, we do not reach the question of whether the unusual circumstances 

exception prevents County from relying on the existing facilities exemption because we 

have determined that exemption does not apply to this project. (Cf. Azusa, supra, 52 

Cal.App.4th at p. 1207 [concluding 80-acre unlined landfill was ‘unusual’ because it 

overlay a major drinking water aquifer and presented a substantial risk of pollution].) In 

addition, County’s erroneous description of the project caused the administration record 

to be undeveloped on the application of the exception to the exemption. For instance, 

LADWP did not have adequate notice of County’s reliance on the exemption and, 

therefore, did not have a fair opportunity to address “the burden of producing evidence 

supporting an exception.” (Hillside, supra, 60 Cal.4th at p. 1105.)

C. Commonsense Exemption*

1. Basic Principles

County also relied on the commonsense exemption, which is inherent in CEQA’s 

text and explicitly set forth in Guidelines section 15061 as follows: 

“(b) A project is exempt from CEQA if: [¶] ... [¶] (3) The activity is 

covered by the common sense exemption that CEQA applies only to 

projects which have the potential for causing a significant effect on the 

environment. Where it can be seen with certainty that there is no 

possibility that the activity in question may have a significant effect on the 

environment, the activity is not subject to CEQA.” 

* See footnote, ante, page 1.
35.

“[W]hether a particular activity qualifies for the commonsense exemption presents 

an issue of fact, and ... the agency invoking the exemption has the burden of 

demonstrating it applies.” (Muzzy Ranch, supra, 41 Cal.4th at p. 386.) Accordingly, 

when a legitimate question is raised about the possible environmental impacts of a 

proposed activity, the public agency has “the burden to elucidate the facts that justified its 

invocation of CEQA’s commonsense exemption.” (Muzzy Ranch, supra, at p. 387.) 

Despite this allocation of the burden of presenting evidence and demonstrating the 

exemption applies, it is possible for an agency to carry that burden on appeal even though 

the commonsense exemption was not addressed in the agency’s review. (See Save the 

Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 175.) 

2. Contentions

County’s opening brief asserts “there is ample ‘substantial evidence’ in the record 

demonstrating that the County’s mere acquisition of the Landfill Sites will not itself 

result in any environmental changes.” This contention relies on County’s erroneous 

description of the project and, as a result, the contention is tainted with legal error. (See 

pt. II.D., ante [Scope of This Project].) County also asserts “the record includes a lack of 

evidence of any potential environmental changes that will result from the mere change in 

ownership—under these circumstances, the lack of evidence of actual impacts is, by 

itself, substantial evidence that there will be no impacts.” Again, this contention is 

tainted by County’s legal error in viewing the project too narrowly—an error that can be 

described as piecemealing. (See Environmental Protection Information Center v. 

California Dept. of Forestry & Fire Protection, supra, 44 Cal.4th at p. 503 [“CEQA 

cannot be avoided by piecemeal review”].) 

County also addresses the trial court’s analysis and argues “the trial court should 

have deferred to the County’s factual determination that the substantial evidence in the 

record supported its determination that the acquisition fell within the definition of the 
36.

common sense exemption.” County supports this argument by asserting the resolutions 

of necessity “do not authorize any landfill activity beyond what currently exists. ... The 

project here only constitutes ‘changing a tenant to an owner,’ and nothing more.” 

3. Independent Review of an Undeveloped Record

Our analysis of County’s arguments begins with the principle that, in a CEQA 

case, both the trial court and appellate court sit as a court of review. (Vineyard Area 

Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 

427.) As a result, the appellate court reviews the agency’s action, not the trial court’s 

decision. (Ibid.) Therefore, we do not evaluate the trial court’s analysis for error. 

Instead, we conduct an independent review of County’s action, which leads us to 

conclude County’s approach to the commonsense exemption was tainted by its legal 

error. We recognize “whether a particular activity qualifies for the commonsense 

exemption presents an issue of fact.” (Muzzy Ranch, supra, 41 Cal.4th at p. 386.) 

However, because County took an erroneous view of the activities constituting the 

project, we cannot infer the Board of Supervisors decided the pertinent issues of fact 

raised by the application of the commonsense exemption to those activities. Furthermore, 

we cannot decide the issues of fact as a matter of law because the evidence in the 

administrative record is insufficient to carry County’s burden of “elucidat[ing] the facts 

that justified its invocation of CEQA’s commonsense exemption.” (Id. at p. 387.) For 

example, there is insufficient evidence to identify the source of water for the BishopSunland Landfill and evaluate the environmental consequences of using that source.

Therefore, we conclude County failed to proceed in the manner required by CEQA 

when it invoked the commonsense exemption. Whether the commonsense exemption 

might apply to the whole of the projects’ activity is a question that we cannot definitively 

resolve because the administrative record was never developed to address the whole of 

the project’s activity. 
37.

IV. TERMS OF THE WRIT OF MANDATE

County contends the writ of mandate issued by the trial court was too expansive, 

erroneously ordering County to vacate all three resolutions of necessity. County asserts 

“the present action challenges three separate resolutions of necessity for three separate

parcels. Each must be considered independently.” County’s piecemeal approach is 

contrary to long-established CEQA principles, which includes the Guidelines’ definition 

of a “project” as “the whole of an action.” (Guidelines, § 15378, subd. (a); see 

Environmental Protection Information Center v. California Dept. of Forestry & Fire 

Protection (2008) 44 Cal.4th 459, 503 [“CEQA cannot be avoided by piecemeal 

review”].) We therefore conclude the trial court did not err in issuing a writ of mandate 

that (1) directed County to set aside the three resolutions of necessity and (2) stated the 

resolutions were null and void because County failed to comply with CEQA. 

Furthermore, our independent review of the writ of mandate has identified no violation of 

section 21168.9, which addresses the requirements for the order entered after a court has 

determined the agency has failed to comply with CEQA. 

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

FRANSON, J.

WE CONCUR:

HILL, P.J.

SMITH, J.