Opinion
KAUS, J. 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 ex[415]haust 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 [416]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 doc[417]umentary 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; 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 [418]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 be barred from judicial relief under the exhaustion doctrine when it had not participated in, nor received any notice of, the relevant administrative proceedings. (49 Cal.App.3d at pp. 113-114.) In this case, by contrast, plaintiffs did have notice of the administrative proceedings and actively participated at every stage of the hearing process. Indeed, as we have seen, at both the planning commission hearing and the city council meeting plaintiffs were explicitly reminded of the available administrative appeal. Under these circumstances, plaintiffs’ failure to exhaust their administrative remedies cannot be excused under Corte Madera. (Cf. La Costa Beach Homeowners Assn. v. Wayne (1979) 89 Cal.App.3d 327, 331 [152 Cal.Rptr. 355].)
IV
Plaintiffs alternatively argue that their failure to appeal the planning commission decision to the city council should be excused on the ground that such an appeal would obviously have been “futile.” Pointing out that just a few months earlier the city council had approved an amendment to the city’s general plan which authorized the use contemplated by the three tract maps and that the council had approved the tentative tract map item on its October 14th consent calendar, plaintiffs maintain that it is clear that the city council would have rejected any appeal that they filed.
Plaintiffs’ contention misconceives the scope of the so-called “futility” exception to the exhaustion doctrine. As the Court of Appeal explained in Doyle v. City of Chino (1981) 117 Cal.App.3d 673, 683 [172 Cal.Rptr. 844]: “Futility is a narrow exception to the general rule. In Gantner & Mattern Co. v. California E. Com. (1941) 17 Cal.2d 314 [109 P.2d 932], [318,] the court stated, ‘[t]he exhaustion of remedial procedure as laid down by the statute is required unless the petitioner can positively state that the commission has declared what its ruling will be in a particular case . . . .’” (Italics added.) (See also Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834 [112 Cal.Rptr. 761].)
In this case, the council’s actions do indicate that it favored the proposed development as a legislative policy matter. As far as the present record reveals, however, the council had never addressed plaintiffs’ specific legal challenges to the adequacy of the EIR; it is those challenges, of course, which form the basis of plaintiffs’ underlying administrative mandamus ac[419]tion. Indeed, as already noted, one council member specifically informed plaintiffs at the October 14th meeting That the council’s unwillingness to schedule another public hearing on its<.dwn motion did not reflect a determination on the merits of any claims that plaintiffs might raise through an appeal of the planning commission’s decision. In view of these facts, plaintiffs cannot properly maintain that the pursuit of their administrative appeal would have served no purpose or that the council’s disposition of such an appeal was a fait accompli.
V
Finally, plaintiffs contend that their failure to exhaust administrative remedies should be excused because of the alleged invalidity of the city’s administrative appeal filing fee. Although it is not clear that plaintiffs’ failure to pay the fee was the sole basis on which the city rejected the appeal—as noted, the appeal was also filed one day late—there is a more fundamental flaw in this posture.
Plaintiffs’ attack on the filing fee proceeds on two separate fronts: first, plaintiffs maintain that the city was not authorized to impose such a fee on any party other than the subdivider; second, they suggest that, in any event, the amount of the fee was arbitrary and excessive. As we explain, the first contention is erroneous as a matter of law and the second is not properly presented.
At the time of the administrative proceedings in this case in October 1980, the Subdivision Map Act specifically authorized the city (1) to permit “any interested person adversely affected by a decision of the advisory agency [here, the planning commission]” to appeal the commission’s decision to the city council (Gov. Code, § 66452.5),1 and (2) to “establish reasonable fees for the processing of tentative, final and parcel maps and for other procedures required or authorized by this division or local ordinance.” (§ 66451.2.) Nothing in the applicable provisions suggests that the statutorily authorized fee could not be imposed on “any interested person” who invoked the local appeal process, and plaintiffs have cited no authority which has interpreted these sections to prohibit such a fee. In our view, a plain reading of the provisions confirms the city’s right to impose a reasonable fee in this situation.
Plaintiffs contend, however, that a 1980 amendment to another provision of the Subdivision Map Act, section 66452.5, subdivision (e)—which became effective on January 1, 1981—precludes a local entity from imposing [420]such a fee on anyone other than the subdivider.2 While the new statutory language on which plaintiffs rely postdated the events in question, plaintiffs assert that it should nonetheless be applied to all cases—like this one—that were pending on appeal when the statute went into effect.
There are two answers to this contention. First, even if we were to assume that the new statute were intended to limit a city’s general authority to impose fees on anyone other than a subdivider, under established principles of statutory interpretation, this statute—like most legislative enactments— would apply prospectively, and would not excuse nonpayment of a local appeal fee which was valid when imposed. (See, e.g., Wilke & Holzheiser, Inc. v. Dept of Alcoholic Bev. Control. (1966) 65 Cal.2d 349, 371-373 [55 Cal.Rptr. 23, 420 P.2d 735].) Second, the 1980 legislation of which section 66452.5, subdivision (e) was a small part was directed generally at protecting the rights of tenants faced with a proposed condominium conversion, and the legislative history of the enactment makes it clear that the statutory language on which plaintiffs rely was simply intended to authorize local entities to charge subdividers for the additional expenses incurred in providing the various notices to tenants that are now required under the new legislation. (See Legis. Counsel’s Dig. of Sen. Bill No. 1645, 4 Stats. 1980 (Reg. Sess.) Summary Dig., p. 357.) Plaintiffs point to nothing which suggests that the Legislature intended this provision to foreclose a local entity from imposing reasonable fees on “interested persons”—like the plaintiff organizations—who seek to invoke the administrative appeal process. The reference to section 66451.2 in section 66452.5, subdivision (e) merely points to the source of power to collect a fee.
Finally, plaintiffs claim that even if the city was authorized to condition their administrative appeal on the payment of some fee, the $607 fee imposed in this case cannot be sustained. Plaintiffs argue in essence that the fee schedule established by the applicable city ordinance—setting the appeal fee at one-half the initial filing fee for the proposed subdivision, so that the fee varies with the size of the subdivision—is not a “reasonable fee” within the meaning of section 66451.2. That section currently provides that local agencies “may establish reasonable fees for the processing of tentative, final and parcel maps and for other procedures required or authorized by this [421]division or local ordinance, but the fees shall not exceed the amount reasonably required by such agenc[ies] to administer the provisions of this division.”3
Although plaintiffs characterize the question of the validity of the fee as purely a question of law, it is plain that the “reasonableness” of a particular fee under section 66451.2 cannot properly be resolved in the abstract. Without an evidentiary record, we cannot determine either (1) the full range or nature of the administrative services and functions which are properly covered by the fee, (2) the reasonable cost of such services and functions, or (3) whether the fee structure in question bears a reasonable relationship to such costs.4 While plaintiffs assert that the fee at issue is arbitrary on its face, in the absence of relevant factual data we are in no position to determine whether the $607 figure is excessive or whether a fee schedule under which the amount of the fee varies with the size of the proposed development is necessarily “unreasonable” as a matter of law. Because plaintiffs did not pursue this claim below, neither the city nor Anaheim Hills was afforded an opportunity to present relevant factual evidence to support the fee. Indeed, given the presumption of validity traditionally accorded to legislative acts, it is plaintiffs—rather than the city or Anaheim Hills—who bore the initial burden of presenting a prima facie evidentiary showing as to the invalidity of the fee. Having failed to make any such showing, [422]plaintiffs cannot challenge the reasonableness of the fee for the first time on appeal.5
The judgment is affirmed. Each party shall bear it own cost on appeal.
Richardson, J., Broussard, J., and Grodin, J., concurred.
Unless otherwise indicated, all statutory references are to the Government Code.
As enacted in 1980, section 66452.5, subdivision (e) provides in full: “Notice of each hearing provided for in this section shall be sent by United States mail to each tenant of the subject property, in the case of a conversion of residential real property to a condominium project, community apartment project, or stock cooperative project, at least three days prior to any such hearing. The notice requirement of this subdivision shall be deemed satisfied if the notice complies with the legal requirements for service by mail. Pursuant to Section 66451.2, fees may be collected from the subdivider for expenses incurred under this section.” (Italics added.)
Plaintiffs base their contention on the emphasized portion of the provision.
In October 1980, when the administrative proceedings in this case took place, section 66451.2 simply required that the fees established by local entities be “reasonable.” The clause expressly limiting such fees to “the amount reasonably required ... to administer the provisions of this division” was added in 1981. (Stats. 1981, ch. 914, § 6, p. 3459.) Thus, there is a serious question whether, as plaintiffs assert, the fee which they failed to pay in 1980 is properly subject to attack under the current statutory standard.
Because the modification in the statutory language is not crucial to the resolution of this appeal, we shall give plaintiffs the benefit of the doubt and assume, without deciding, that the 1981 legislation simply fleshed out the pre-1981 “reasonableness” standard and thus that the current statutory standard is applicable here. (Cf. Santa Clara Countv Contractors v. City of Santa Clara (1965) 232 Cal.App.2d 564, 571-579 [43 Cal.Rptr. 86].) In emphasizing the difference between the pre- and post-1981 statutory language (dis. opn., pp. 424-425, post), the dissent seems to be arguing against its own conclusion.
When section 66451.2 was amended in 1981 (see fn. 3, ante), a concluding sentence was added to the section to provide that the fees authorized and regulated by the provision “shall be imposed pursuant to Chapter 13 (commencing with Section 54990) of Part 1 of Division 2 of Title 5.” The referenced sections—54990 et seq.—apply generally to all local zoning, permit, and water and sewer connection fees, and establish, inter alia, a procedure which local entities must follow in levying new or increased fees. Among other requirements, a local entity must “make available to the public data indicating the amount of cost, or estimated cost, required to provide the service for which the fee or service charge is levied and the revenue sources anticipated to provide the service, including general fund revenues.” (§ 54992, subd. (a).)
This statutory scheme makes it clear that the validity of any local fee ordinance is necessarily dependent upon the actual or estimated administrative costs of the service, matters which are obviously factual in nature.
Contrary to the suggestion in the dissent, we emphasize that we intimate no opinion as to the actual reasonableness or validity of the appeal fee at issue, but conclude simply that plaintiffs may not belatedly raise this claim because of the factual questions involved. Although the dissent speculates that the fee structure is arbitrary on its face and cannot possibly be justified, without knowledge of the relevant facts we cannot say that the overall administrative costs of processing and deciding an appeal—e.g., the cost of notifying neighbors and tenants, the expense incurred in researching and resolving the issues raised—do not bear a sufficient relationship to the general size of a project to render the challenged fee structure reasonable. Certainly the fact that the cost of handling a particular appeal does not correlate precisely with the set fee, or that in some cases somewhat similar appeals may generate different fees, would not necessarily establish that a given fee structure or schedule is unreasonable. As in matters of fiscal planning generally, practical considerations dictate that a fee schedule be based on reasonable generalizations.
The fact that an administrative agency may have the authority to resolve a particular appeal without a full hearing does not necessarily render a general fee schedule unreasonable. Even if the agency ultimately concludes that a hearing is not warranted, the appeal may generate substantial costs relating both to providing notice to interested parties and to the agency’s research efforts in deciding that a hearing is unnecessary; the dissent’s argument to the contrary is based on the unwarranted assumption that when a hearing is not provided, the agency simply rejects the appeal out-of-hand without performing any duties that may involve administrative expense. In addition, the dissent’s reliance on an agency’s power to deny an appeal summarily proves too much: if the point were well taken, any fee above the cost of filling in the blanks and mailing a preprinted denial would be excessive.