Mention the phrase “exhaustion of administrative remedies” and every land use lawyer and property rights attorney will confirm that it is one of the most important procedural requirements for a successful case, along with the statute of limitations and the ripeness doctrine. This article will briefly explain the concept of “exhaustion of administrative remedies,” and future articles will discuss the statute of limitations and the ripeness doctrine.
The “exhaustion” requirement is actually very simple, but is frequently overlooked, especially if a property owner is attempting to obtain land use approvals without the aid of counsel. In short, it is a requirement that the property owner seek all available remedies at the administrative level before the court will hear the case. For example, if the planning department denies land use approvals, an appeal can and must be made to the highest administrative body. If your property is located within city jurisdiction, this usually means that an appeal of a denial can and must be heard by a city council. If your property is located within county jurisdiction, an appeal can and must be heard by a county board of supervisors. Even if you believe there is no chance of overturning the planning department decision, an appeal nevertheless must be made. Without the appeal, one is not able to say an “exhaustion of administrative remedies” has taken place. Also bear in mind that the time period to file a notice of appeal to the highest administrative body can be very short: be sure to confirm the deadline.
There is also another component of the “exhaustion” requirement that is equally important. Not only must an appeal be made to the highest administrative body, but all legal and factual arguments must be presented to the administrative body for consideration. For example, an argument that denial of a land use application is contrary to a use allowed under existing zoning must first be presented to the administrative body for the court to consider the argument. This is also referred to as creating a proper record for the court. If factual and legal arguments are raised for the first time in court, more likely than not the court will not consider them. For this reason, it is vital to retain the services of an attorney to assist in ensuring that all legal and factual arguments have been preserved for the record by first exhausting all administrative remedies.
If the administrative body denies the proposed land use, the typical remedy is a writ of mandate to compel the administrative body to issue a permit. Writ cases are considered by the court only on the basis of the administrative record developed during the appeal process, so make sure sufficient time and energy is devoted to ensuring that the record contains all of your factual and legal arguments.
If you have questions about the process of exhausting your administrative remedies feel free to call the Sacramento Lawyers and Los Angeles Attorneys at (877) 770-7379. Timothy Kassouni will speak with you personally.